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The conventional wisdom in Washington has been that George W. Bushs second Supreme Court nomination would be vastly more controversial than the first, causing huge hissy fits, titanic temper tantrums, and endless caterwauling. The conventional wisdom gets partial credit. There has indeed been much gnashing of teeth and rending of cloth over the nomination of Harriet Miers, but it has been almost exclusively on the Right.
Yes, yes, the usual liberal activist groups issued their press releases condemning the presidents pick, but that system was on autopilot already. In fact, I hear Ralph Neas of People for the American Way is creating a holographic version of himself which will condemn extremist judges millennia from now, when the earth is ruled by super-intelligent bees.
The authentic dismay has been on the Right. Many conservatives believed this was the opportunity for a slam dunk. John Roberts was an inspired choice. His credentials are impeccable, his abilities beyond dispute. If Bush appointed a Michael McConnell or a Michael Luttig brilliant judges on the 10th and Fourth Circuits, respectively he could have not only moved the Court to the right but moved the entire legal culture through the sheer intellectual force of the justices.
Harriet Miers credentials are, shall we say, modest. By consensus, shes a distinguished attorney and highly capable presidential aide. She was a major player in Texas legal circles, serving as the first female head of the state bar of Texas. President Bushs introduction on Monday smacked of resume padding. She was on the Dallas City Council and tried cases before judges. And, President Bush noted, as head of the Texas Lottery Commission Miers insisted on a system that was fair and honest. Thats a bit like saying that, as head of the water authority, she insisted tap water be fit for human consumption; its the right position but hardly a profile in courage.
Among conservatives there are several competing and sometimes overlapping theories as to why Bush settled on Miers.
He had no choice. Hes weakened by Katrina, Iraq, and the polls, and he cant afford Armageddon in the Senate. A stealthy, female nominee who was all but pre-approved by Senate Minority Leader Harry Reid is the prudent step at this time. In other words, shes confirmable, and at the end of the day the one indispensable qualification for any nominee is that they can actually make it to the bench.
Shes a crony. This isnt really a theory so much as an observation. She meets the dictionary definition of a crony: a longtime personal friend. She was Bushs personal attorney and in the White House she was his trusted gatekeeper. Bush prizes loyalty above most other considerations and has a long history of picking loyalists above more credentialed outsiders. Bush knows her heart and trusts that she reflects his views.
Shes a woman. Again, this is no theory either. But Mrs. Bush has stated that she thinks there should be another woman on the court, and many moderate Republicans and Democrats including Senate Judiciary Chair Arlen Specter have indicated that theyd be inclined to vote for a woman.
Shes an evangelical Christian whos been a member of the Valley View Christian Church in Dallas for 25 years. Marvin Olasky and James Dobson, two leaders of the conservative evangelical community, came out early to endorse her. Not only does this suggest that they believe shes a cultural conservative with settled views similar to the presidents about church-state issues and abortion, but it offers an opportunity to have this important political constituency represented on the court. Identity politics isnt just for Latinos, blacks, and women anymore.
A bonus is that Democrats tend to get stuck on stupid when it comes to dealing with Christian conservatives. Nothing would please Karl Rove more than to watch Chuck Schumer and Joe Biden maneuver themselves into a position where they sound like theyre saying committed Christians need not apply.
None of these is a bad reason for tapping Miers. But President Bush has put himself in the awkward position of asking his base to trust him at precisely the moment the base was expecting Bush to demonstrate their trust was well-founded in the first place. For this reason and others, the Miers nomination has opened up several crisscrossing fissures on the Right: East Coast credentialists vs. outside-the-Beltway populists, Bush loyalists vs. conservative-movement activists.
The press will spend a lot of time wondering what the Democrats will do. But for now the more interesting question is, what will the Republicans do?
October 06, 2005, 1:49 p.m.
McCains Blunder
A liberal minority in the Senate will have the upper hand.
I am hearing two primary arguments for Harriet Miers by those who are close to the president:
1. The president knows her, believes she is the best candidate, and we should trust him because his past judicial picks have been excellent; and
2. There are not enough Republican votes in the Senate to win an ideological fight over a nominee like Michael Luttig, Edith Jones, or Janice Rogers Brown.
I and others have already addressed the first point at some length over the last several days. As I wrote Monday morning in Benchmemos:
The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their extra-constitutionalism. The president flinched. ...
Unfortunately, no new information has been presented to change my view.
But the second argument about the impotence of the Senate Republicans is worth some discussion, too. The fact is that this Gang of 14 moderates, led by Senator John McCain, did make it much more difficult for the president to win an ideological battle over a Supreme Court nominee. The Democrats did, in fact, send warnings that they were prepared to filibuster the second nominee. And under such circumstances, the president would have needed 60 votes to confirm his candidate, not 51.
Lest we forget, Majority Leader Bill Frist and the overwhelming majority of his Republican colleagues were poised to defeat the unprecedented and frequently used (or threatened) filibuster tactics that had been unleashed against President Bush by the Democrats to weaken his appointment power. The big media editorialized against it. George Will wrote at length (albeit unpersuasively) against it (see here and my response to him here). And Bill Kristol's favorite presidential candidate in 2000, John McCain, the leader of the Gang of 14, was all over the media making clear he would torpedo such an effort. And that's exactly what he did. This in no way excuses the president's blunder in choosing Miers. But the ideological confrontation with the likes of Senator Charles Schumer and the Democrat left that many of us believe is essential, including Will and Kristol, was made much more difficult thanks to the likes of McCain and the unwillingness to change the rule before any Supreme Court vacancy arose. This president has been poorly served by his Republican "allies" in this regard. Bush is the first president who has had to deal with an assault of this kind on his constitutional authority. And unless and until the filibuster rule is changed, a liberal minority in the Senate will have the upper hand.
Today the president would have to persuade seven of the most unreliable Republican senators to trigger the so-called nuclear option in order to clear the way for an up-or-down vote for, say, a Luttig. It is not at all certain or even likely that Lincoln Chafee, Olympia Snowe, and/or Susan Collins the most liberal of the seven would have voted for the Senate rule change for the purpose of confirming a solid originalist. And it's likely the Democrat leadership would have succeeded in convincing at least some (if not most) of the seven Democrat moderates to oppose a rule change. I have no doubt that this was part of the White House's political calculation. And it's possible the president didn't want to limp into this fight. That's no excuse. But McCain who wants to be president and has now endorsed Harriet Miers and his cadre must not escape scrutiny for their blunder.
Mark R. Levin is author of the best-selling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host on WABC in New York.
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Mark Levin..Lest we forget, Majority Leader Bill Frist and the overwhelming majority of his Republican colleagues were poised to defeat the unprecedented and frequently used (or threatened) filibuster tactics that had been unleashed against President Bush by the Democrats to weaken his appointment power. The big media editorialized against it. George Will wrote at length (albeit unpersuasively) against it (see here and my response to him here). And Bill Kristol's favorite presidential candidate in 2000, John McCain, the leader of the Gang of 14, was all over the media making clear he would torpedo such an effort. And that's exactly what he did. This in no way excuses the president's blunder in choosing Miers.
Bonnie said:He's right about many things and this is clearly one of them. I cannot for the life of me figure out why at times this president and many times the Repub Senate act like they aren't in power. I get so angry and frustrated over that I can't really watch the news or feel good about any future prospects for the party. The Dems act like Pit Bulls, and the Republicans act like Poodles. Im going to take a wait see stance on Harriet but Im very disappointed in Frist's leadership. They had a golden opportunity here and they blew it just like last time when the Republicans took power.
manu1959 said:the gang of 14 is in control, they are determined to keep the US in the middle....they have rendered both extremes impotent.....
Bonnie said:Silly me all this time thinking politics was a war of ideas and to the victor go the spoils? What was I on
