Saturday, October 29, 2005

Judicial Nominations & Republican Politics

I would like to respond to a comment Dave Lane (glad we have intelligent liberal contributions on the blog - thanks!) made on a previous post:

"I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):
1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork). "

The Miers nomination raises reasonable doubts about the sincerity of conservatives who suggested that the presidential nominating power was sacrosanct. Many conservatives made compelling arguments that "advice and consent" could not mean that a president had the DUTY to prequalify nominees with the Senate. In the case of Miers, the President made a choice and the reaction was outrage - How dare he! In defense of the abovementioned conservatives, I would distinguish between saying that the Constitution requires senatorial participation in the selection of nominees (a novel interpretation of the Constitution opportunistically advanced recently by some Democrats) and saying that a president's choices can be criticized (a freedom fully exercised by Republican citizens in recent weeks). Republican senators did not initiate or even participate in the rebellion against Miers and their subtle telegraphing of a difficult confirmation seemed to underscore the generally accepted notion of senatorial veto power to a presidential power of choice.

"Every nominee deserves an up or down vote" refers not to public opposition, which derailed this nominee, but to (ab)use of Senate rules to prevent a vote coming to the Senate floor, notably the filibuster. The objection is not to free speech but to minority thwarting of the majority will. The Miers withdrawal was a submission to popular will.

Miers was not generally treated abusively. She was a very weak nominee, offering ample material for substantive objections, and the attacks hardly had the chance to get personal in the short time involved. Judge Bork, on the other hand, was subjected to the full fury of modern media politics.

You have a point on abortion litmus tests.

I believe the Miers nomination was, as Geoff Shipsides reported in a post before Miers' nomination, a sacrifice nomination. The abortion element was crucial to setting up the next nominee. Here's how:

It has by now been established that Miers opposes abortion (and Karl Rove made sure that we'd all find out) and it seems reasonable to assume that she would have been a vote to overturn Roe as well. The Democrats hardly raised a peep against Miers but instead held their fire as they saw Republicans seeming to do their work. BUT the Miers prologue simply strengthens the importance of QUALIFICATIONS in the public mind; opposition to abortion hardly got a chance to be brought up as a problem.

So, we are left with: 1) qualifications are the key to evaluating a nominee (another Republican talking point), and 2) opposition to abortion is not a problem.

I think the next nominee will be: Edith Jones, Emilio Garza, or Michael McConnell. And any of them will now have a much easier time getting confirmed after Miers. There will be a tough fight but the ground is well prepared for the engagement.


Misha Tseytlin said...

I think this post is dead on. The advice and consent power implies AT MINIMUM an inquiry into two factors- (1) character; (2) ability to do the job. It became pretty obvious that Miers failed clearly on (2). Why should Miers not been withdrawn when it was obvious that he failed one of these two tests? Bush made a terrible mistake in picking Miers, and thankfully this has passed. As i showed in my post this is NOT Bork- this is anti-Bork.

GULC Law Student said...

I can't believe Bush would go for a sacrificial nomination at this point in this presidency. He's under seige from so many directions right now, it seems like terrifically foolhardy PR move to allow yourself to be taken down by your own party (whether you wanted it or not). If this was Bush's plan from Day 1, whatever political acumen he once had is now gone. He needs whatever positive news he can get, instead, in one week, we get a Supreme Court rejection, the 2000th dead soldier in Iraq, and indictments against a level advisor. It's a good time to be playing head games with people.

Charles Iragui said...

Was the admin that nominated, with meticulous preparation and perfect execution, John Roberts and Ben Barnanke the same one that couldn't find its way out of a paper bag with Miers?

It seems to me that the Miers feint (or foible) has seriously improved the confirmation process (and success) of whichever non-consensus nominee is now chosen, compared to what that same nominee would have faced as John Roberts took his seat Oct 1. Just lucky?

Misha Tseytlin said...

Charles, you have really taken leave of your senses with this theory. This is also the same president who picked Mike Brown and who went forward with Bernard Kerick despite everyone telling him BEFORE the nomination that he had too many problems.

The answer is much much more simple- with his best advisors tied up with the leak investigation, Bush was left on his own and made a stupid move. His spin machine tried everything to defend this undefensible candidate, and then Bush finally wisened up (like he eventually did with Kerick) and then he and Harriet decided to put an end to this disaster.

D said...


I find incredible the theory that Bush nominated Miers with the intent that the nomination would fail. If he did, it was a monumental miscalculation. I’m no defender of Bush’s decision-making ability, but for him to fracture the Republican party at a time when indictments are flying around D.C. like confetti; when the number of American war dead has climbed to 2,000+; when the administration is still suffering greatly from the Katrina debacle, etc., etc., just doesn’t make sense.

The Miers nomination caused the largest, most visible crack in the foundation of the Republican party in as long as I can remember (certainly since he took office). Contrary to your assertion that “opposition to abortion hardly got a chance to be brought up as a problem,” opposition to abortion was the straw that broke the camel’s back. Miers expression of some support for some sort of self autonomy is what put the nail in her coffin (the religious right wielded the hammer).

As you pointed out, the Democrats were content to sit back and watch the Republicans battle each other. Rather than strengthening the chances of the next nominee though, I think that weakens his/her chances. The Democrats are feeling strong and vindicated. I discussed in a previous post my thoughts on the now defunct GOP talking points, but I forgot an important one: the nominee need not give up documents. The alleged reason for Miers’ withdrawal (which I don’t think anyone takes seriously) is that senators were/would demand the release of documents. Add that to the other dead talking points and you have a bunch of Democratic senators feeling like they can go full steam ahead with (1) demanding full disclosure of any documentary evidence of a nominee’s views; (2) possibly using views on Roe against a nominee; and, perhaps most importantly, (3) refusing the nominee an up or down vote.

John Aravosis opined on his blog (GULC grad who runs Americablog) that Bush will nominate a far right-winger, he/she will get shot down by a strengthened Democratic party, and Bush will then nominate someone more moderate (like Gonzales -- relatively more moderate). That way Bush will be able to tell his base, “I tried,” and in the end still appoint his own choice. I find that theory somewhat plausible. It’ll be interesting to see how things play out.

-Dave Lane

Charles Iragui said...


Don't obsess; I have consistently allowed that my theory was speculative and that in either case the result is the same: I believe (sorry Dave!) this has significantly eased the path of the coming nominee.


The reason the coming nominee has an easier chance is that 1) the terms of the debate have changed (qualifications have become the biggest issue), and 2) the dynamic is different (moderate Reps now MUST back Michael McConnell).

I am not sure where you get your info that there were doubts about Miers on abortion. I never saw this on NatRev, WklyStnd, Volokh (troika of opposition to Miers). Her lack of the kind of impressive originalist, textualist judicial credentials brought a storm against her. Liberals persist in misunderstanding conservative intellectuals (and all the polls show that this was an attack by intellectuals, not the popular base). The intellectuals were outraged by Miers' cutting in line, even being in line.

I was surprised by the apparent optimism of conservatives Friday, after the Libby indictment. The Miers withdrawal has energized people; Bush can easily win back his supporters by getting a McConnell on the Court.

The key has been, from the outset of the 2nd seat process in September, the moderate Republicans. The Democrats are a sideshow (44 votes). The moderates in the party have now been given critical cover: they must support the nominee for party unity and the nominee will be highly qualified, so it won't be difficult.

McConnell, appointed Monday, in by mid Dec. Nuclear option available (moderates would support it for a McConnell) but it therefore won't be invoked.

D said...


Here’s a link to a National Review article in which Edward Whelan criticizes Miers on abortion:

James Dobson also expressed concern about Miers’ 1993 speech in which she spoke of “self-determination.”

I think our disagreement is fundamentally about why and by whom Miers’ nomination was shot down. Was it because the Republican intellectuals thought she was unqualified (sidebar--it’s good, although puzzling, to see that being an intellectual is no longer a crime in the eyes of Republicans), or was it because the radical religious right thought she was neither radical nor religious enough? Perhaps the truth is somewhere in the middle. Another blogger, Kos (, thought that her lack of qualifications made her particularly vulnerable to attack by the far religious right.

-Dave Lane

D said...

Here's the full link to the National Review article. Paste both halves into the address bar.


Charles Iragui said...


Fair enough on Whelan. But if one gave a fair look at Bench Memos, the NatRev judicial blog, one would discern a focus on trying to support her nomination but failing because her judicial thinking was not impressive. Even here, the point Whelan is making is not simply that she's not a sure vote on overturning Roe, but that she is a "muddled" thinker.