Monday, October 10, 2005

Blame It On the Senate

In reading the most recent Fed Soc blogs on the nominations of Ms. Miers, I must say I'm a little surprised that two big points have been completely overlooked. First is the role of the "moderate Republicans" in the Senate. Second is the fact that the Court moves to the right regardless of the result of the Miers hearings.

Had a Luttig or Garza received this nomination, I doubt that the moderate Republican Senators would have stood solidly behind him. Their history with the fillibuster "compromise" proves very unpromising. If such a candidate had been nominated and challenged by the Demos, I doubt the Republicans would have used the nuclear option. They did not even stand for this principle in the abstract; why would they suddenly invoke it when it makes a practical difference and they would open themselves up to even more charges of partisanship? Cow-towing to Democrats on such a nomination would communicate that not even the Republican party wants to align itself with these "controversial conservatives," and could greatly set back the work that conservative groups like the Federalist Society have done in making conservative ideas part of the mainstream legal dialogue.

Because Luttig and Garza were not nominated, these same moderate Republicans are now up-in-arms. The Democrats seem to be happy enough. This is also a very good thing since the moderate Republicans are the ones that make or break the confirmation. If the Republicans do decide to reject Miers as a candidate, it puts them in a position to have to stick by their guns when Bush nominates a candidate with a more substantial conservative track record. The moderates could not avoid acknowledging the conservative branch of their party as easily the second time around if their reasons for rejecting Miers included inability to determine her jurisprudential views. It would put them in a position to have to take a stand for conservative jurisprudence by legitimizing judges with a solid conservative history. It would be much easier for a conservative judge to be confirmed if the Senate rejects Miers.

Secondly, I'm not as sure as my Fed Soc colleagues that Miers is such a horrible pick. I have to disagree that there is a certain path or a certain set of credentials that reveals a judge has a strong unassailable philosophy. Or even that a woman that doesn't have those credentials is intellectually inferior to those that do. Ultimately, the fears of Federalist Society members should not be that Miers is not intellectual; the fear should be that she does not have a consistent jurisprudential philosophy. Many Supreme Court justices that did not follow what we see today as the typical track were effective nonetheless in this important area, including Marshall, Warren, Harlan, Frankfurter, and Jackson. (http://writ.news.findlaw.com/commentary/20051005_gerber.html) Whatever criticisms can be made of these men (especially Warren and Marshall) not having a consistent judicial philosophy is not among them. The main point is that, if confirmed, I think Miers replacing O'Conner will move the court slightly "to the right." And that is a good thing.

Whatever happens next, it seems the court goes our way. Either the Senate denies her nomination and is forced to support someone with stronger conservative ties, or they confirm her, and we get a controversial candidate slightly more conservative than O'Conner. I'm not sure the Miers nomination is a great idea; I'm just not so sure it's a bad one.

5 comments:

Misha Tseytlin said...

If I picked a random lawyer off of the phonebook, it seems that the same criteria that Sarah laid out in her third paragraph would be satisfied. I do not think that is good enough. The Supreme Court is the highest battleground on legal issues of the day- the liberals have some of their best legal minds- like Breyer- fighting for their point of view.

Perhaps the best argument I have heard around this whole Miers nomination is the simple question- do you seriously believe Miers could win a constitutional argument with Breyer? From everything I have heard, there is little reason for me to think she could. There are many conservative judges, professors and even lawyers that everyone BUT Bush has more confidence in that Miers.

As for the conformability of Luttig or McConnell- I have little doubt they would be confirmed. Bork lost when the Senate had many more Democrats than it had now- plus he was completely tactless at the hearings. Luttig may present a tough fight- but at least 51 Republicans would surely vote for him, and I believe any filibuster would broken on his record and demeanor alone—I seriously doubt he could be painted as an extraordinary circumstance. Someone like Edith Jones might have been unconfirmable because of some of her tactless statements that are on the record, but Luttig has no such problem. Hopefully, when Miers’ nomination is withdrawn (knock on wood) we will get to test out to see who is right.

Misha Tseytlin said...

P.S. all these so called moderate Republicans voted for Janice Rogers Brown just a month ago. They are not going to vote against Luttig or McConnell...

GULC Law Student said...

The biggest problem with the Miers pick is political. Regardless of how she would perform as a Supreme Court Justice (and frankly none of us have anywhere near enough information to judge that at the moment) she's a lousy pick, right now, for the Bush administration.

For a presidency about to be in the midst of what's going to be the biggest political/legal/ethical scandal to hit the office since, well, Clinton (and before him, Reagan) with the impending Rove/Libby endictment, he needed to pick someone that would fly through confirmations with no difficulties. If the confirmation hits a snag, it's going to join all the other snags the president has going right now (in Iraq, in Afghanistan, in New Orleans, in the grand jury room...) and it's going to drag this president down the point of complete impotence.

In addition, the president is currently struggling with a perception of cronyism. Is this really the best time to be nominating your bestest buddy to the Supreme Court? We all know he likes his friends, but is now the time to showcase that?

People liked that Bush stuck to his guns when things got tough... but that sort of charm can only last so long. Eventually people want you to acknowledge when things aren't going your way and change directions... people want that now. People aren't getting it, and this nomination is going to highlight that more than anything else that's happened in the last 8 years. Republicans aren't happy. Democrats aren't happy. Independants aren't happy.

You're going to see a swing in November, '06, and Miers is going to be a significant cause of it.

Charles Iragui said...

gulc law student,

Your political analysis disregards a salient fact: that Bush is not up for re-election. His actions reflect this discounting of opinion and increased appreciation for Congressional votes (ie: Social Security). Whether in '06 the Republican Party will suffer and the Democratic Party profit from Bush's sacrificing of his own popularity is far from certain.

I predict that much of the next three years will be played out quietly inside Congress. Miers was one unhappy result (massive consultation) but this decision and others will be linked to maneuvering for majorities on difficult legislation.

D said...
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