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Thursday, October 06, 2005

The Best Harriet Miers Debate

Update: The truth is the truth, and if you won't listen to me maybe you will listen to Novak via The Anchoress:
Two weeks ago, Bush was seriously considering another Texas woman he likes and knows well. The nomination of Federal Circuit Judge Priscilla Owen would have been highly regarded in the conservative community. Owen was confirmed for the appellate bench only after the compromise forged by the Group of Fourteen, and Republican senators advised the White House they did not want to fight for her again so soon.
So, if they wouldn't fight for one who had already been confirmed, then who would they fight for? Who would have gotten them motivated? Owen was the obvious, easiest pick! It is not Bush, it is the Senate.End Update

The best one I have found is up at No Oil For Pacifists and Beldar.

Carl produced a massive, resource-filled and clearly argued post explaining his opposition (his initial take here). He got comments from Beldar, who has written extensively on the subject as well (see these posts from most recent to last one, two, three, four, five, six, seven, eight.)

Now, both of these men are practicing lawyers with sharp minds and reasoning abilities. Neither one tends toward hysteria or partisanship for the sake of partisanship. They are on opposite sides of this debate and their arguments are particularly illuminating. This is why blogging can be so superb. If you have the time, don't miss these two.

The Anchoress has correctly rebuked some of the more extreme reactions to the Miers nomination. However, one can disagree with the nomination without being an extremist about it. She is getting a lot of email - see her other posts here and here. Our Dr. Sanity thinks we are seeing conservative hysteria:
Let's wait and see how things go, shall we? If she is confirmed (and it is likely she will, no matter what anyone thinks) we'll have a few more Bush years in which to decide if the President made a sound choice or not.

This rush to judgement on the soundness of his choice is futile and worthless. Whatever one thinks now about what she believes or doesn't believe means nothing. Just look at how poorly previous predictions of how potential Supreme Court Justices would behave have fared.

This is conservative hysteria. The truth is that anyone the President might have nominated could turn out to be the Antichrist as far as either the conservative or liberal agenda is concerned. These nominees do not pledge their allegiance or sign their name in blood committing them to one point of view or another. All anyone can do is hope for the best.
My take is this. The Senate already signaled Bush that he didn't have support for someone like Janice Brown, which is a pity. Priscilla Owen took herself out of the running. If Bush wanted to nominate a woman he didn't have many safe options, and I think the moderate Republicans wanted him to nominate a woman. So he nominated someone he felt he knew to be safely conservative, but now he can't even get support for that nomination.

I think this nomination will be rejected or withdrawn, but I am not going to say why because I am extrapolating from some reports that I can't confirm. However, it will leave the Senate in an interesting position, because the next nominee they get will be someone like Luttig, and the Dems will go wild. Bush's real problem is that the Democrats won't accept anyone who is actually a proven conservative (and Republicans like McCain and Specter won't either), and he only has at best 49 or 50 Republican senators willing to go out on a limb for a proven conservative candidate. So this debate is forcing Republican senators to take a stand they don't want to take.

This is getting fascinating. Can you imagine Cheney casting the deciding vote to break a filibuster in a 50-50 split in the Senate? It could happen! The worry and distress over this proves to me that the institution of the Supreme Court is at an impasse. If it continues to hand down decisions that the huge majority of Americans regard as wildly erroneous, something is going to give. And if the moderates in American life continue to get stuck with vaguely Marxist justices who don't believe in the text of the Constitution, all hell is going to cut loose.

Bush came up with the best pick he could to prevent that (although no one knows how this will work out), and it looks like he will be rebuffed. If he is, the battle lines have been drawn and 2006 will be a frenzy. If electing a Republican senate and a Republican president can't reverse the slide into a magical, mythical rather totalitarian constitution created by a Supreme Court of benevolent, aged and out-of-touch lifetime appointees, then what is left?

The real problem here is that the Supreme Court was designed to have very limited power under our Constitution but has assumed too much. Bush is struggling to find nominees that he thinks will curb that trend, but both the left and the right are frantic because they realize how much is at stake. I sympathize with those who don't find the cry of "Trust him" motivating, but they will have to take their battle to the Senate, and they have a very limited ability to apply pressure to the individual senators, some of whom come from swing states.


Comments:
Great, great post.

It will be intersting to see if and how rational behavior will play itself out here.

Less and less likely, it appears.
 
M_O_M, thanks for the linky-love.

I'm not sure why opposing Miers is irrational. Many of us have spent years trying to get the judicial activism toothpaste back into the tube. Other than the war, this should be the President's highest priority. And, like the war, a wrong decision will have long-standing consequences.

There are no second chances for bad Supreme Court appointments. I though W had learned from his father's mistakes. As a long-time supporter and campaigner, I'm crushed to discover I was wrong.
 
Carl - it isn't irrational!

That's why this is such an interesting debate. There are valid arguments on both sides.

It's just that some people are arguing irrationally, but that doesn't mean the controversy doesn't have a rational basis.

SC&A, it is questionable.
 
Sis,

Here is another take.

A number of people who did not like George Bush’s war in Iraq, what they saw as increase in government police state, limiting of free speech, etc supported him in the last election because of his promise to appoint strict constructionist judges. If the country is to return to some sort of constitution-limited federalist republic this is a needed first step. That was the deciding factor for a few folks I know.

So what do we have here? A person for whom there is no way of knowing how they will turn out. We do not know what this person brings to the table so to speak, will they be a strict constructionist, or do they simply share the personal opinions and world view of George Bush? Pardon us if we do not trust George Bush, but we do not and have what one might see as valid reasons. Here are a few.

1) Passing Federal limits on political speech. How is this constitutional?
2) A seeming willingness to adopt police state methods. How about the 4th amendment for starters?
3) A resistance to court overview of prisoners of war and US nationals declared foreign combatants by the Feds. What happened to the entire bill of rights on that one?

A known conservative who came out of a liberal (but tier1 school) will certainly be a true strict constructionist; they have by acts letters and deeds shown that they will act in accordance to the constitution and that they are not simply one who generally agrees with the president at this point in their life. The history of Republican appointees who have not come from such a background is abysmal. Think Souter and the justice being replaced as evidence of this.

The argument that he cannot fight this is specious, when he want s to fight for something he believes in such as the Iraq War or the current threat of a veto over a new law to proscribe torture he seems to have enough force to do so. Consider how that seems to folks that believe in the Bill of rights and rule of law. The president will expend precious political capital to defeat a law that just restates restrictions on torture (already illegal by the way), but will not fight to put in a known strict constructionist judge. What does he believe in? Just as proper what sort of Judge will this woman be? The lack of any sort of a reasonable answer is why the conservative are in an uproar.
 
Bro - well stated. I can't say that I don't agree with you about the issues, but I doubt the president can win this one.

There's another factor, and that's the Senate. Specter didn't even want Bush to nominate anyone until next year. McCain will definitely not support anyone not to his benefit - he is running for the presidency in 2008. The seven republicans that signed onto the deal earlier to stop the really conservative nominees are already on record as opposing a nominee such as Janice Brown. Remember, she is one of the ones they dumped.

It's not so simple. Last week Priscilla Owen took herself out of the running.
 
I'm with Bro. There are literally dozens of people more qualified. The Roberts nomination seemed to demonstrate that the President both understood the need for extraordinary competence and wouldn't be deterred by ephemeral politics (such as the existence, vel non, of external genitalia). I'm stunned to learn it wasn't so.
 
Look, she isn't who I wanted. Frankly, I don't care if there is even one woman on the SC. I wish Bush had renominated Bork or someone as close to him as he could find. Luttig would be fine for me.

But you are ignoring one reality, which is that if these senators wouldn't fight for Owen they wouldn't fight for any conservative. What they wanted was for Bush not to nominate anyone but to wait for next year! They are all thinking about their reelection.

Now Carl, deploy your logic and think about this. What if the Republicans lose two seats in the 2006 elections? Would that make the Senate more or less likely to fight for a conservative?

This way, Bush forces them to approve or deny. If they deny, then the Republicans have to tell him who they will accept. This way, he puts the pressure back on them. This way, they have to take a stand. This way, the country has to take a stand.

I can assure you that a conservative male nominee would not have been confirmed by the Senate. The problem is not that Bush wanted a nominee without male genitalia; it is that more than 5 Republican senators are sorely lacking in testicular fortitude on this issue.

Capice?
 
The RINOs wouldn't fight, so we should surrender? Bush made the classic CEO mistake: he negotiated with himself.

Let 'um reject Janice Rogers Brown--we'd nominate Owen. Let 'um reject Owen--we'd nominate Alito. Either would be higher ground on which to fight in '06. Instead, we've set a precedent green-lighting unqualified Democrat cronies.
 
Diddos Carl
 
Maxed out Momma--WOW--who are you? found my way here via Anchoress and will book mark you. Great analysis--I think I love you.
or not--but I will be back.
 
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