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October 04, 2005

More Contrariness

An excellent essay:

...the notion that one needs a judge to serve on the Court runs contrary to dozens of appointments stretching back to the beginning of the nation and forward to appointments as recent as Justice William Rehnquist. John Marshall was not a judge before going on the Court but went on to become one of the foundational figures in American jurisprudence. Robert Jackson wasn’t a judge before going to the Supreme Court. Nor were Louis Brandeis, Felix Frankfurter, William O. Douglas, Harlan Fiske Stone, or Earl Warren. Hugo Black had a year’s service as a police-court judge. Like or dislike what these men stood for, all left their mark on the Court and on the law. No one who looks back over the history of the Court, can say that these judges were less-influential, less-important, or less-capable justices than their colleagues who had prior judicial experience. The addition of a lawyer with experience in the corporate world (a serious deficiency on the current Court) as well as extensive experience with the legal issues that come across the president’s desk will make the Court a stronger, not a weaker, institution.

Second, there is a fatal conceit that we can and should look to ascertain a nominee’s personal views on a variety of specific issues that might come before the Court. That is exactly the opposite of the rule of law. The rule of law demands that judges adhere to legal rules that are set forth by others, that the job of the judge is to interpret and apply the law, not to promote personal visions of good law. The whole structure of our legal system — from life tenure to the nature of the briefing and decision process to the requirement of written decisions explaining the judges’ views — is designed to insulate judges from external pressures and to assure their fidelity to the law. We need to know that potential judges are competent to read, understand, and interpret the law and that they have the temperament to do so. We do not need to know their personal beliefs.

Third, the critics, both Left and Right, do an injustice to the president as well as to Miers. The constitutional design is that the president selects judges. He selects judges he has confidence in. We vote for the president we trust, and he gives us appointees he trusts. The president told us what sort of judges he was looking to appoint and the American people elected him — after his opponents made this a key campaign issue. The fact that the president has worked closely with Miers, knows her well, and has faith in her is a good thing. It is good for conservatives, as the president has made clear his own embrace of conservative principles, and we can expect that someone he has such great comfort with shares those principles. It is good as well because the president has made clear as well his commitment to judicial — as opposed to political — conservatism, to having judges respect their circumscribed role. The Constitution gives the president primacy on appointments of officers of the United States, including judges. It gives the Senate a far smaller role, following nomination, in safeguarding against misuse of the appointment power. It does not give the Senate an equal voice in appointments. As so ably stated in Federalist No. 76:

In the act of nomination, [the president’s] judgment alone would be exercised; and as it would be his sole duty to point out the man who, with the approbation of the Senate, should fill an office, his responsibility would be as complete as if he were to make the final appointment. There can, in this view, be no difference between nominating and appointing. The same motives which would influence a proper discharge of his duty in one case, would exist in the other. And as no man could be appointed but on his previous nomination, every man who might be appointed would be, in fact, his choice.

Posted by Cassandra at October 4, 2005 09:02 AM

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» More on Miers from The Unrepentant Individual
Villianous Company, in an effort to be contrarian and not pile on Harriet Miers, pointed me to this article by Ronald A. Cass of National Review. Cass is more of the trust Bush group, and tries to pick apart the anti-Miers arguments: [Read More]

Tracked on October 4, 2005 10:48 AM

» Whom do I trust? from Righty in a Lefty State
I imagine that my first reaction to the President's nomination of Harriet Miers to succeed Justice O'Connor mirrored many other conservatives. [Read More]

Tracked on October 4, 2005 11:42 AM

» Defending Miers from New World Man - it's got wires that vibrate
Villainous Company points approvingly to this piece on NRO. Much of the reaction to the nomination of Harriet Miers to be an associate justice of the Supreme Court has focused on her lack of judicial experience. Conservatives and liberals alike have sa... [Read More]

Tracked on October 4, 2005 12:02 PM

» Miers: A week to think from The Unrepentant Individual
I dont trust Bush one bit on this one, but were forced to play the game his way. Hes the President, and he made the nomination he saw fit to make. [Read More]

Tracked on October 8, 2005 01:39 PM

Comments

I disagree, for several reasons. Addressing points in order:

1. The problem is not that she's not qualified because she's not a federal judge, it's that nothing in her past gives any credence to any thoughts of a judicial philosophy. She's never, in her professional career, dealt with matters of Constitutionality, separation of powers, interstate commerce, etc. Roberts had a mostly non-existent judicial career, but had extensive time in front of the Supreme Court. He clearly has extensive knowledge of the intricacies of Constitutional law. It's not a lack of judicial experience that's a problem, it's a lack of relevant career experience.

2. The fight is between originalism and a living constitution. Those of us who believe in originalism consider it to be the "rule of law", and a living constitution is a pliable tool to create a society ruled by men, not law. The living constitution is step 1 towards arbitrary government. I consider it crucial to ascertain whether a potential justice believes that the constitution means what it says, and cannot be interpreted in an ever-wider fashion. I don't care about Miers' personal beliefs about abortion, or tax structures, etc. What I care about is her judicial philosophy, not her stand on individual issues.

3. We're not saying the President has to nominate who we tell him to. We're saying that the President is likely making a mistake, and considering that we don't know anything about Miers, we're not going to work one bit to support her. Cass quotes Federalist #76, but leaves one bit out:

"It will readily be comprehended, that a man who had himself the sole disposition of offices, would be governed much more by his private inclinations and interests, than when he was bound to submit the propriety of his choice to the discussion and determination of a different and independent body, and that body an entier branch of the legislature. The possibility of rejection would be a strong motive to care in proposing. The danger to his own reputation, and, in the case of an elective magistrate, to his political existence, from betraying a spirit of favoritism, or an unbecoming pursuit of popularity, to the observation of a body whose opinion would have great weight in forming that of the public, could not fail to operate as a barrier to the one and to the other. He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

(3 con't) It seems that Hamilton, in Federalist #76, opposes the idea of rewarding a political acquaintance in the appointment process. Bush's nomination clearly reeks of political cronyism. Cass says that the Senate has the ability to guard against the misuse of appointment power. I'd call appointing someone who does not appear to have any qualificiations in Constitutional law, does not seem to have any judicial philosophy, and who could easily just be a political tool to help Bush deflect future legal inquiries against himself that may be in front of the court, as a misuse of his appointment power.

Miers may be qualified, we have no basis for determining from on her past experience. She may even be the next Clarence Thomas or Antonin Scalia. But considering that we have no idea who she is, I see no reason to stand behind Bush on this when his only answer is "trust me". Especially when, as QandO points out, Bush trusts Rafael Palmeiro and Vladimir Putin.

Posted by: Brad Warbiany [TypeKey Profile Page] at October 4, 2005 10:43 AM

But considering that we have no idea who she is, I see no reason to stand behind Bush on this when his only answer is "trust me".

I could just as easily say 'But considering that we have no idea who she is, I see no reason to stand against Bush on this until we know more about her judicial philosophy.'

Cass' point is not that She is qualified or that you should trust Bush that she is qualified. Only that we should wait to see what the hearings turn up before forming an opinion.

She may be so far right that she makes Thomas/Scalia look like barking moonbats, she may be so far left she makes Souter/Ginsberg look like freepers. We just don't know. The appropriate response to ignorance is inquiry and discovery, not rejection.

Posted by: Masked Menace© at October 4, 2005 11:25 AM

I am inclined to think that her thoughts on many topics around the conservative philosophy are already known to the President, so I lean towards trusting his judgement. I will be very interested to watch the Senate try to figure out how to approach her!

Posted by: Barb at October 4, 2005 11:45 AM

We don't know much about her past yet. I wrote a rather lengthy post, on the otter heiny, that gives a lot of clues.

And as to "judicial philosophy", Roberts, who just sailed by with broad-based conservative approval, distained any particular "judicial philosophy": texualism, originalism, or anything else, which seems to have escaped you all. On the other hand, Miers' best friend aays she's an originalist and her background as a K lawyer suggests she will be inclined to strict construction of wording. So there are plenty of clues, unless of course you have already made up your mind, which seems to be the case with so many of the critics so far.

As for me, I'll wait and see.

Posted by: Cassandra at October 4, 2005 12:04 PM

I have a great deal of trust in the Constitutions creators, if they felt that a justice should be a judge first I believe they would have so stipulated. Instead they left it to the President to appoint his choice for this position; if you don’t trust the President to do this, then you should not have voted for him in the first place.
I am of the opinion that the less judicial training the better, we need justices that know what’s happening at the lowest levels, who are more in touch with what issues are hitting the public at these lower levels, how business and lower courts are hampered by divine judicial reasoning at the rarefied level of the Supreme Court.

Posted by: Ken Barto at October 4, 2005 12:12 PM

Be careful Ken - that's sounds suspiciously like fresh thinking.

We'll have none of that around here :)

*running away*

Posted by: Cassandra at October 4, 2005 12:22 PM

The problem is not that she's not qualified because she's not a federal judge, it's that nothing in her past gives any credence to any thoughts of a judicial philosophy. She's never, in her professional career, dealt with matters of Constitutionality, separation of powers, interstate commerce, etc. Roberts had a mostly non-existent judicial career, but had extensive time in front of the Supreme Court. He clearly has extensive knowledge of the intricacies of Constitutional law. It's not a lack of judicial experience that's a problem, it's a lack of relevant career experience.

Heh.
By this standard, Bush should have picked me!
Now there's a scary thought.

Posted by: spd rdr at October 4, 2005 01:43 PM

...and we know how much of a left wing hack you are :-)

Posted by: Masked Menace© at October 4, 2005 01:57 PM

It will be a decade before we know what we've really got here. And that is a source of disappointment wholly independent of what kind of justice Ms. Miers would make.

It's disappointing that the nominee for one of the most powerful positions in the country is such a huge question mark--even to those who follow these things closely. With such a rich pool of highly credentialed candidates, we should be hearing phrases like "brilliant legal mind" and "constitutional scholar." Instead, we are hearing things like "hard working" and "dedicated public servant."

More disappointing is that an opportunity is lost. The time is ripe for a public debate on the mega-issues that reach far beyond the appointment of this justice. We should be discussing judicial activism, examining the evolution of the Senate's powers to advise and consent, and ironing out some ground rules for the use of the filibuster. Instead, these things will largely be set aside as we spend the upcoming weeks simply trying to figure out who the heck this woman is.

Posted by: Freeven at October 4, 2005 02:11 PM

spd also wants to put the lid on innocent bears.

Posted by: Cricket at October 4, 2005 02:26 PM

Well... looking at the current court, it would appear that even with their wonderful "qualifications", many of the prior appointments turned out to the ciphers too.

In other words, their prior decisions on the bench were *not* predictive of their SCOTUS rulings, nor were their wondrous pronouncements of "judicial philosophy".

And with all due respect Freeven, I doubt that all the national debate in the world would resolve the questions you mention. It would more likely devolve into a hair-pulling, mud wrestling, eyepoke fest - highly entertaining but not particularly illustrative.

They haven't been resolved so far, they weren't resolved when Roberts was nominated, and I don't see a new nominee magically resolving what no prior nominee resolved in the past.

Y'all should hop on over to Beldar's place. He addresses the scholar question rather more eloquently than I managed to earlier. I've already taken too many whacks at it that particular canard. If you're not convinced by decisions like Kelo and Booker that "scholarship" is overrated, I'm not sure what will convince you, frankly.

Posted by: Cassandra at October 4, 2005 02:39 PM

Cass,

It isn't whether she will be a good justice. We aren't condemning her b/c she will be Souter, though that is possible. Bush went on the record in favor of Putin, Palmero, that Iraqi guy who turned out to be a fraud, etc. People he knew. His judgment just isn't that trustworthy.

We will all see what kind of justice she will make.

That doesn't change that she is a stealth candidate who is not a sure thing to the base and won't get us the national debate we should have. Bush is making it clear that liberal advocasy is OK (Ginsberg) but being conservative and saying so is punished. This isn't good. Bush punted b/c he was too chickenshit to stand up for his principles and win a winable fight in Congress.

As for the idea that less legal training or less exposure to the Constitution is good, I find that to be self serving after the fact rationalizing. Also, we should not so easily deny the cronyism charge. No one here would have make these arguments if Clinton had appointed one of his in house, corporate, govt. lawyers with no Constitutional experience.

I hope Miers is a great justice one day. Either way, Bush let me down and pissed me off.

Posted by: KJ at October 4, 2005 02:43 PM

This isn't good. Bush punted b/c he was too chickenshit to stand up for his principles and win a winable fight in Congress. - KJ (emphasis mine)

Is it winable? Fun maybe, but winable? Really? Roberts, who was also called a stealth candidate got 22 no votes. Would a non-stealth candidate even make it to a vote?

Posted by: Masked Menace© at October 4, 2005 02:51 PM

As for predicting outcomes, my recollection is as follows:

Souter had no qualifications to speak of. State court of appeals in Vermont or NH or whereever is not preparation for SCOTUS. He has sucked.
Scalia had a great resume and everyone knew where he stood. He has been outstanding and predictable.
Kennedy had a decent resume. He has been decent, being on the right side more often than not, but he has some big boners.
O'Conner had no special practice qualifications to speak of for SCOTUS - appeals court of Arizona. She was OK at times, right more often than not, but with some big boners.
Ginsberg had pretty good qualifications, mostly as an advocate, and she has been the leftist we all knew she would be.
Breyer had a good resume. He has been the leftist with a little moderation we expected.
Stevens had a fair resume and is way to the left of where he was expected to be.
Thomas had a fair resume running a Federal law enforcement agency of sorts (EEOC) being a sitting DC App judge, but no doubt his quality on the SCOTUS outshines his resume.

I see no pattern here excpet inconsistency. But the best of the most "underqualified" justices was O'Conner, which isn't saying a lot to me.

Posted by: KJ at October 4, 2005 02:52 PM

MM,

If not now (55 Republicans) then never. This is a fight that has to be fought and won. The filibuster is in the Republicans hands. Otherwise, we will silence our best minds that might one day aspire to the SCOTUS.

Yes, it would have been won. See the Cheese for my analysis.

Posted by: KJ at October 4, 2005 02:54 PM

All I will say is that you have finally managed to utterly piss me off (a thing not easily done) and I think it's best that I say nothing from this point forward.

You are maligning a man who has consistently stood up for what he thought was right when no one else in the free world would take a stand, yet with your unique and penetrating insight into his thought process, (and before the confirmation hearings have even taken place) you feel justified in accusing him of cronyism and cowardice at the drop of a hat.

Wow.

With supporters like this, who needs enemies?

Posted by: Cassandra at October 4, 2005 03:08 PM

I have always stood behind Bush in the WOT and thought highly of him for standing his ground. That does not translate to his domestic agenda where he has not been a conservative. He has been a big government Republican. I can segregate the two issues. He is not the same person in domestic issues as he is in the WOT.

And my point is not that he is recommending a crony, Cass. Read my statement again. My point: the charge of cronyism based on the facts is fair, and I would make that charge if Bush were a liberal Democrat. My point was it is not easily dismissed. I'm not saying he doesn't sincerely believe she is up for the task. I don't believe his belief would make it so though.

I'm sorry I pissed you off, but I believe what I said. I don't think my opinions are unfounded.

Perspective: when Clinton bombed an aspirin factory in Sudan and some buildings in Iraq, I thought it was wag the dog b/c of the impeachment trial about to begin. [Even if it wasn't, I believe that Clinton may have failed to act as he might of if the impeachment hadn't hung over his second term, but I blame Clinton for that, not the Republicans.]

I have never thought that of Bush. Until now. I think it likely that this was a very political decision made from a perceived position of weakness in the poll numbers.

Posted by: KJ at October 4, 2005 05:16 PM

Sorry that you're pissed, Cass, but I have to agree with KJ. It is not harsh to expect someone to keep his promises.

Bush promised tht he would appoint Thomas/Scalia type conservative justices to the court. There are plenty of well-qualified, clearly and obviously conservative choices out there. Janice Rogers Brown and Priscilla Owen come to mind off the top of my head. Instead, he chose to go with an unknown quantity. After having been sandbagged for decades by Souter-like picks from Republican Presidents, is it any wonder that conservatives are skeptical?

Bush screwed this up by allowing the Democratic fillibusters of the prior appellate nominees to continue. He should have expended the necessary political capital to rein in the "maverick" Republicans to end that farce. Had he done so, he now wouldn't have to tippy-toe through the Senate with a "stealth" candidate.

I can't express the level of disgust I feel at Bush's mishandling of judiciary issues. While I fully support him on the War on Terror, he is in danger of becoming like his father; great on foreign policy, but an incompetent on domestic policy.

He is in real danger of alienating the Republicans conservative base by continuing to placate the Democrats and RINOs like McCain. That base has already been uneasy at his proclivity to spend the national fisc like a drunken sailor on shore leave.

As I said before, Cass, I hope that you are correct, and my suspicions are wrong re Miers. If the reverse occurs, however, you can almost guarantee a Democratic victory in 1998 as the conservatives stay home on election day in disgust at being used, yet again, and stop believing empty campaign promises.

Posted by: a former european at October 4, 2005 05:16 PM

I flipped over to the Cheese just now and realized KJ had already covered my points. Oh well. BTW KJ, what's up with your blog? Every few days it won't let me post. Are you trying to filter me out?:)

Posted by: a former european at October 4, 2005 05:24 PM

As an attorney and asshole, if that isn't redundant, I can't believe that line isn't typed at me more often.

Posted by: KJ at October 4, 2005 05:26 PM

KJ, you said
"If not now (55 Republicans) then never"

My problem is that the 55 includes such jelly fish as my own Senator "missing" Linc Chaffee, the Crying towel boy from Ohio, the two "girls from Maine" and let us not forget Arlen "thanks for the money now leave me alone" Spector.

This is not a fight we could win.

Also Martin Olasky likes her and trusts her, that's good enough for me.

Posted by: jimmytheleg [TypeKey Profile Page] at October 4, 2005 05:45 PM

Dang, I wish I could read the Presidents mind like you guys can, it’s amazing how quickly he crumbled; I guess he will be pulling the troops out at the end of the week?

I don’t know why he picked Miers, I will just continue to trust that he has been as shrewd a card player on this pick as he has on others. As I understand it, the President has known her for 10 years; she has helped him to pick other candidates to back up his pledge on conservative judges.

Somehow I don’t see Bush as cowering behind his desk because someone won’t like his pick, although he probably thought only his own Republican Senators would be his harshest critics, not his base.

Posted by: Ken Barto at October 4, 2005 06:09 PM

I sense a strong kinship between the knee-jerk reactions I've read here and elsewhere to the DailyKos and MoveOn reactions regarding the last 2 GWB SCOTUS appointments.

Namely....."It's not who WE wanted nominated"

Intelligent discourse has it's place.Let's try to find more.


Greg

Posted by: Greg at October 4, 2005 08:17 PM

jimmytheleg,
It won't get any better than 55. I guess we will never have another Scalia.

Ken,
I don't "just trust" him. Sorry.

Posted by: KJ at October 4, 2005 08:37 PM

Cassie, I'm assuming that much of your response was directed at other posters and not at me specifically, since you seem to be responding to points I didn't make and positions I didn't take. So I'll just respond to the portion where you mentioned me by name:


"And with all due respect Freeven, I doubt that all the national debate in the world would resolve the questions you mention. It would more likely devolve into a hair-pulling, mud wrestling, eyepoke fest - highly entertaining but not particularly illustrative.


"They haven't been resolved so far, they weren't resolved when Roberts was nominated, and I don't see a new nominee magically resolving what no prior nominee resolved in the past."



I mostly agree. However, just because further discussion isn't likely to "resolve" these issues doesn't mean they aren't worth discussing. If we adopt that line of thinking we might as well just shut down the entire blogosphere and all go home. Some issues (like the War on Terror or the effects of judicial activism) are so important that we must keep addressing them--not in the hope of "resolving" them, but in the hope of expanding awareness and nudging their evolution in the desired direction. Nominations to the Supreme Court are infrequent and are prime opportunities to bring the relevant issues into the public forum.


I actually trust President Bush in this; my guess is that Ms. Miers will turn out to be a fine justice. I also suspect that any number of candidates whose credentials are more firmly established would make fine justices. That being the case, my preference would be to start with an acknowledged "heavyweight" rather than an "unknown," so we could devote more time to what I called the "mega-issues" rather than data collection. If that increases the amount of hair-pulling, mud wrestling, and eye poking, so be it. That may be just the thing we need at this juncture.

Posted by: Freeven at October 4, 2005 10:00 PM

Well, at this juncture, I might just need a little mud wrestling, and I could tolerate a modest amount of hair pulling but I can't see where I am in need of any eye pokes.

Thankyouverymuch.

I will say this, one must be very careful if one finds it necessary to mess with Texas women. Just a word of caution.

Posted by: Pile On at October 4, 2005 10:07 PM

We didn't spend much time on 'mega-issues' in the Roberts hearing, Freeven. I think what makes me angriest about this non-debate is that IMO the critics are holding the President to a standard we all know is utter fantasy. This won't be decided in the blogosphere - it will be decided on the Senate floor and it's *that* reality we must deal with.

John Yoo (who opposes the nomination) said it tonite and was too freaking dumb to see what he'd said, which surprised me because he's a very smart man. "We don't think she's necessarily even a bad choice.... [later] This could heal a nomination process which has been broken since Bork."

Duh...John. Do you see that big red mark in the middle of your forehead?

The nomination has become little more than a political litmus test and everyone knows it. A referendum on abortion and affirmative action and women's issues. The goal is no longer to have an honest debate - it is to avoid getting burned or touching a third rail. It doesn't matter what side you're on - you can't offend the Left or the Right or you're toast.

And the irony of this is: most of us live and work towards the Center, not on the Left or the Right. It's the Center - the majority of Americans now - that is scared to death of offending the minorities on the fringes. If we had any freaking brains we'd turn and trample the living daylights out of the whiny twits (just a joke, but Lord, it's tempting).

And I've stayed out of this all day b/c it annoyed me no end, but this is just plain stupid:

Especially when, as QandO points out, Bush trusts Rafael Palmeiro and Vladimir Putin.

To quote Sesame Street, "one of these things is not like the other"

President Bush on Vladimir Putin:
I looked the man in the eye.


President Bush on Rafael Palmeiro:
"Rafael Palmeiro is a friend. He testified in public and I believe him.

President Bush on Harriet Miers:
I've known Harriet for more than a decade. I know her heart, I know her character.

Let's add to that, that he both works with her and has invited her on more vacations than any other staffer. She is not a casual acquaintance.

Gee boys and girls, can you tell me *which thing is not like the other*? I'd say more, but the Sarcasm Monster is about to overwhelm me for the 20th time today. I can't comment when I'm still po'd.

Posted by: Cassandra at October 4, 2005 10:53 PM

Au contraire, Monsieur Jump atop! Ze eyepokes to Cowboy Bush most fun giving are!

Cass, cherie, must you so pouty be? Know you well that Jacques your pout tres irresistibile finds, but you doing over it are. Ze disagreements politicale most fierce can be, but l'amour, oui l'amour, she never dies! Remember, cherie, always will we Paris have.

-- Jacques Chirac

Posted by: a former european at October 4, 2005 11:08 PM

Mmmmm......In or around 450 B.C., Herodotus made the following statement:

"If an important decision is to be made [the Persians] discuss the question when they are drunk and the following day the master of the house...submits their decision for reconsideration when they are sober. If they still approve it, it is adopted; if not, it is abandoned. Conversely, any decision they make when they are sober is reconsidered afterwards when they are drunk."

Frankly - it sounds like nothing has changed.....

Posted by: Dr. Harden Stuhl at October 4, 2005 11:25 PM

Nothing...except how cheaply Herodotus got off.

Posted by: spd rdr at October 4, 2005 11:35 PM

Wow, Cassie. Not sure I've seen you like this. ;)

I don't know if you are reading too much into what I wrote, or if you've just had it with this subject altogether, but I feel like my point has been lost in an avalanche not-quite-related responses. (More likely, I just didn't make my point very well.)

Oh well. Moving on. [Waving white flag]

Posted by: Freeven at October 5, 2005 12:30 AM

No Freeven. Once again you have been the victim of a comment that was edited 9-10 times before I got whacked off and hit Post.

Only the part that specifically referenced you (both times) was directed to you :)

The reason I have not been saying much is that I could write another lengthy post on this, but if I did it would doubtless alienate half the right side of the blogosphere to no useful purpose. I start to write a short comment and the words just start flowing. Then I read them and realize I can't possibly post what I just wrote.

Between the part that addressed you and the end, there was a bridge that would have made sense of it, but I had to delete it.

It doesn't make for coherence - I'm sorry. And you're right - I'm not sure when I've been this mad, but I don't think your comment irritated me and I think I understood it. I just don't see why having a sideline public debate (that we can have anyway, that won't solve anything) is necessarily worth the toxic political fallout that would result from a battle royal.

Bork was how many years ago? And the wounds still have not healed, and the reverberations are still being felt decades later. Pouring gas on the fire and throwing in every log we can find just because happen to have 55 unreliable Republicans in the Senate and 'part' (by no means all) of the Party aren't happy doesn't recommend itself to me as a strategy for the ages.

Posted by: Cassandra at October 5, 2005 05:23 AM

Cass, cherie, must you so pouty be?

To be "so pouty y tres difficile", it is in the nature of la femme francaise, n'est pas, cherie? That, and the flipping of the chestnut locks of hair, and the flouncing off in high dudgeon! Oooh la la!

Would you all ze fun of life remove, mon ami?

Seriously, there is no 'overdoing' going on. I hate being angry more than anything and bend over backwards to avoid it. What upsets me about this is an issue left over from the election, and it still rankles. Perhaps I will write about it in a more general way because I think it's a major weakness in the Rethug party. In fact, I predicted something like this would happen on another forum and it saddens me greatly to see that prediction come true even though I suspect most of it is puffery.

One thing you need to realize is that I'm hardly the only one who feels this way. I've been corresponding with a number of others who are similarly furious with their own Party.

Posted by: Casserole at October 5, 2005 05:39 AM

As always, I don't have much to say on this, but if you desire more food for thought I will direct you to my husband's rants.

My two cents? Well, I think he's being sneaky. And even handed in a way that makes sense. I'm not saying anything about his promises, the reasons we voted him into office, or *where the hell did she come from*. I am saying that with a handful of people on the Court, having someone who probably thinks outside the box is beneficial.

As to *why* he didn't go for the fight, read the links, as I agree. He has info that we don't, more than likely pointing him to another appointment or two down the road.

**These Are Not Good Times To Be A Republican President**, in case you haven't noticed.

Am I pissed that he didn't go for the fight? Yes, but maybe he's got a plan. I voted for the man because I couldn't handle the thought of being attacked under Kerry KNOWING that the US would do nothing but talk about it with him at the helm.

Yes, Bush is accountable to us. Yes, he could do better. No, I haven't any clue what is in his playbook. But I will trust the man until *it is proven* that he sold us out. I don't think having a moderate on the Court is selling me out.

http://shootingmessengers.blogspot.com/2005/10/believe-what-you-willthis-one-he.html

http://shootingmessengers.blogspot.com/2005/10/believe-what-you-willthis-one-he.html

http://shootingmessengers.blogspot.com/2005/10/damn-george-you-promised.html

Posted by: Lisa at October 5, 2005 06:56 AM

It is not that I don't understand your points, Cass, it is just that I'm deeply suspicious, is all.

As an escapee from the former Soviet Bloc, I have a deep hatred for communists and leftists of their ilk, the same way a jewish escapee from the 3rd Reich would have an abiding hatred for the Nazis. I have seen the horrible evil that they perform in almost a casual, offhand manner.

Couple this with my love for my adopted american homeland, and I get furious when I see the american lefties (who's home is in the modern Democratic Party) continually trying to create a new Soviet Union here in the US. Sure, they try to hide their true purpose behind smiling faces and false compassion, but one need simply review the sordid and bloody history of Communism in the 20th Century to see what happens when they gain power.

I was an enthusiastic Reaganite and was glad that americans finally started turning their backs on liberalism during his presidency. I voted for, but didn't like, Bush the Elder. His brand of country-club, "moderate" Republicans are no different than the Neville Chamberlains of past generations.

Neville was a well-mannered gentleman of integrity and personal honor, like both Bushes. Unfortunately, he was wholly unsuited to deal with a thug like Hitler who didn't play by the Marquis of Queensbury rules.

The modern-day Democrats are the same way. There is no dirty, underhanded trick they won't play. You constantly have to watch for a knife in the back when dealing with them. They don't believe in accountability, morality, or personal responsibility, remember, so what can you really expect from them.

When dealing with such people, no amount of compromise, Munich treaties, or "playing nice" makes any difference. I have known plenty of die-hard commies and, believe me, they are zealous and fanatical as any jihadi.

My point in all this is that the political landscape has tilted against the leftists for over 20 years now, but they cling to power through their deathgrip on the judiciary. There can be no doubt that the judiciary is far and away the most powerful branch of govt. Through liberal appointees the courts have been able to preserve liberalism, and thwart the conservatives by diktat. The court doesn't even pretend to follow the Constitution anymore, they just order us peasants around by raw exercise of power.

Thus, each SCOTUS appointment is a critical political event. I wish this were not so, but I can't ignore the political reality of a 50-year activist court. Conservatives have spent these past 50 years trying to undo the Court's abuses, but have been thwarted by a succession of supposed conservative justices who started singing the Soviet National Anthem the minute they put on the black robes. Enough already.

There are numerous well-qualified SCOTUS candidates with impeccable conservative credentials, with whom one could feel confident that they would not "go wobbly". Instead, we have someone who we have to hope and pray won't betray us like so many prior appointees did.

Can't you see why many feel that gentlemanly Neville tried to make yet another deal to appease Der Fuehrer (the Democrats) with this judicial appointment, rather than take off the gloves and give the Democrats the fight they deserve? We would prefer to see a more Winston Churchill-type attitude from Bush. He has shown he has that kind of backbone and strength with his foreign policy but, sadly, seems reluctant to do so in domestic affairs.

I would be thrilled to eat my cautionary words if Miers turns out to be another Scalia, but I fear we are seeing another Souter.

Posted by: a former european at October 5, 2005 07:02 AM

I totally understand your feelings afe.

My judgment (and part of my anger at the cronyism criticism) is precisely that we will *not* see another Souter in Miers - that is why Bush chose her. Yes he knows her - he knows her personally and intimately and knows she won't change on him like so many have before. And he places that quality - trustworthiness - higher on the list than the paper qualifications that have let us down so often in the past.

And FWIW, my assessment is that we don't have another Scalia here. If anything, we may have another Thomas. And that is better in my book.

Posted by: Casserole at October 5, 2005 08:43 AM

And by the way afe, my RINO post is not aimed at you, nor at any particular person. It's a reaction to things I've been seeing and hearing.

I have been doing a lot of reading in the last few days and I am very angry. I consider myself largely conservative - it is only on social issues that I stray Leftward, and that's because while my personal values may be more conservative, I don't care to tell others what to do with their private lives.

Pundits are swaying people with largely meritricious arguments. I've seen several of them crop up here and on other forums. I don't have time to knock them all down. But this is the same hysteria that gripped the party during the election and I'm sick of it.

Debate, yes. Dissent, yes. I'm sorry, but destructive rhetoric IMO is not helpful. We have enough problems as it is, in case no one has noticed. Open your eyes and try to keep them on the bouncing ball - this nomination is not the only thing going on in the world. We have people dying in the ME - that's some real life stuff going on. We still need bipartisan support for the WOT and other initiatives or Washington will come to a screeching halt.

Burning the bridges is not an option.

Posted by: Casserole at October 5, 2005 08:53 AM

Alright, so let's look at the Putin/Palmeiro thing. Perhaps I'm reading too much into that. How about, "If this transportation bill is over $256B, I'll veto it... Oh, it's $286B? I'll sign it!" What about the push for vouchers in education that we never got. A concession that we'll never see social security privatization from this administration. Waiting long enough that tax reform is unlikely to happen, unless there is a major change between now and the end of his administration. About all we've gotten from him are tax cuts, but those are relatively useless considering his inability to rein in, and active expansion of, spending. I'm 27, and I'm going to spend the rest of my working life trying to pay off the debt he's creating.

My point is that I have failed to see Bush truly live up to what he's promised in the past, throughout his administration. I don't have some de-facto level of trust in his judgement at this point.

And that's the point

As I've said, I don't know enough about Miers to know whether she'll be a strong originalist judge. She might be. She could be exactly the kind of judge I want to see. But given my inability to trust Bush, based on the rest of his administration, I'm not ready to simply take his word for it. Like KJ points out, with the current process, we're unlikely to learn too much about her through the confirmation process. Given what we know, I would highly have preferred a known quantity, not someone who makes me trust Bush's judgement. So we won't really know, for about 5 years, what kind of justice she is.

Posted by: Brad Warbiany [TypeKey Profile Page] at October 5, 2005 10:27 AM

"If this transportation bill is over $256B, I'll veto it... Oh, it's $286B? I'll sign it!"

And if it had been $256,000,000,001 he should have vetoed, darnit! HE LIED TO ME!

What about the push for vouchers in education that we never got.

I agree, I just don't know where the problem is. After all, doesn't the President get to write his own laws.

A concession that we'll never see social security privatization from this administration.

C'mon, that should have been as easy as getting a flat tax passed.


Cass, isn't asking for you to trust Bush, she certainly isn't asking you to endorse Miers. All she is asking for is an open mind. If you discover after/during the confirmation hearings that she doesn't have the analytical ability to accurately interpret the constitution, then do every thing you can to get her rejected (it wouldn't be the first time). But base it on the evidence you have and not because Bush didn't spoon feed the evidence to you.

Posted by: Masked Menace© at October 5, 2005 11:01 AM

1 dollar over, and 30 billion dollars over, is a big difference. EVEN WHEN you're the government and it's not your money anyway. I'll give him a pass on the Social Security thing, because that truly is the third rail, but not on education. He capitulated to Kennedy to get a bill that was eviscerated from his original goals. He should have played hardball, and threatened to veto something the Democrats wanted in return for getting an education bill he wanted, *and followed through*.

And the point I (and I'd add KJ to this as well) am making is that we know nothing about Miers now, and we're likely to learn nothing through the confirmation process. Look at Roberts. He basically said nothing during his confirmation hearings, although he said nothing very well (as I'm sure Miers will do). His past writings, however, give a trail of consistent conservative principles, which we don't have with Miers. If Miers does what everyone advises, and keeps her mouth shut about anything important during the confirmation hearings, we won't know anything about her until she's on the court.

The little we can claim to know about Miers is that she's pro-gun rights, pro-life, anti-affirmative action, and oddly pro-gay rights. This is all hazy information, based not on her writings, but on an odd quote or questionnaire filled out here or there. What does that say about her that we can use to discern whether she has a judicial philosophy?

I'd like to keep an open mind. In fact, I've said constantly that she *might* be the exact kind of justice I want on the court. But if we can't figure this out in the confirmation process, we're gambling a lifetime appointment to a court with obscene amounts of power based on the word of Bush. If she were our only option, I'd say we need to make that gamble. But when we have a large number of highly-qualified potential nominees who aren't a gamble, I'd rather we pick one of them.

Again, I'm not saying she'd make a bad justice, and I'd love to be able to say in a few years that she's a great justice. I'm just saying that given current information, or what is likely to come out in the confirmation process, there's not enough information to make that judgement until it's too late to correct it.

Posted by: Brad Warbiany at October 5, 2005 11:55 AM

What Brad said. Twice.

Posted by: KJ at October 5, 2005 12:10 PM

1 dollar over, and 30 billion dollars over, is a big difference.

It's 11.7% over. The question is where you draw the line. If not 1 dollar, then how about 1,000. Or 1,000,000. Or 1,000,000,000. or 10,000,000,000. Where is too far? Every single person has a different line. I'm sorry Bush's and your's aren't the same.


And Education isn't a third rail? Have you heard the wailing and gnashing of teeth? From both sides, I might add, who yell "Theocrat" because I just might, possibly, maybe, use a voucher for a private religious school. We can barely, if at all, hold students to standards in an environment where teachers can't mark papers in red ink because it's too "aggresive".

Getting back on track:

The reason we got nothing out of Roberts' hearings is because the Dems were idiots about the questions asked, and the Repubs knew it was just a formality so they didn't ask anything.

Encourage your (and other) Repubs to play hardball and find out what we need to know. Don't just go off into hysterics the same way the Dems do.

Posted by: Masked Menace© at October 5, 2005 12:18 PM

No one's in hysterics, MM.

And not vetoing a pork bill 11.7% over is at least relevant to the "trust" factor don't you think? What is the reason for going over the original line? There was none given. It was a line Bush never intended to enforce.

Can the President force his legislative agenda? No, but he can bully pulpit it. He has given up on Soc. Sec. He has given up on vouchers. He is a lame duck. If I were a lame duck, I wouldn't give up on anything I promised. Now is the time to go after everything.

Brad's points that Bush is not, always, trustworthy, is valid.

Bush's father said, "Read my lips...." That's all right. I'll look at what you actually do as President. At home, with this President, I'm underwhelmed.

Posted by: KJ at October 5, 2005 12:38 PM

I can't say I'm particularyly shocked at 11.7% over, no. Seems rather par for the course for all politicians period. Hell, last I checked we can't get Republican Congresscritters to give up on their pork for Katrina Relief. Why should I be shocked about a little over 10%?

Soc. Security Reform? Did I want it, Yes! Did I think it had a snowballs chance? Not Really. It is unwinnable.

Education Reform? Same thing. Unwinnable.

Is it worth ticking off a whole lot of people in a fight you can't win, when it might effect the ability to fight the WOT given the current media portrayal and a lack of political capital right now? Maybe, but I doubt it.

Do I trust Bush on this particular pick? Not particularly, but I haven't given up and resigned myself that "trust" is all we can get.

Posted by: Masked Menace© at October 5, 2005 01:10 PM

I thought that Bush was the President that we told the world "when he says something, he means it." I guess that doesn't count when your Congress gives you a spending program 11.7% over budget, huh? But hey, what's $30 billion dollars, in the grand scheme of things? I mean, it's just $100 added to the tax burden of every person in America (probably $200 if you factor the fact that it's paid for by debt that has to have interest paid on it). A family of four should certainly be willing to pay an extra $800 in taxes over a few years to pay for that itty, bitty, little tiny 11.7% jump. I mean that's not even enough to think about, right?

What is significant about this was that it was $30 billion dollars over what Bush had said he would accept. Congress offered $286B with no reason for why it was so large, and Bush didn't even flinch. He just signed it. He rolled over. I'm sure it had a lot to do with the fact that it came to him from a Republican Congress, but he still rolled over.

Now, when it comes to encouraging Republican senators to play hardball, that's just fine. But it's not going to happen. There's almost no likelihood that they're going to stand up to a Republican president. And why Bush had to put us into a situation where we *need* to be asking Republicans to stand up to him is the problem, not her credentials.

Let me ask you a question. Do you think Harriet Miers is the best person for this job? Do you think Bush honestly believes, given all the choices available to him, that Harriet Miers is the best person for this job? Last, do you think, given what we know, that the rest of the public should have any rational reason that she's the best person for this job?

Posted by: Brad Warbiany at October 5, 2005 01:34 PM

You mean to tell me you're surprised that any politician wouldn't accept only 12% over?

You have more faith in them than I do then. I don't expect them to hold fast against much less than 15-20%. Should it be that way? No. But that's the way it is.

Do you think Harriet Miers is the best person for this job? Do you think Bush honestly believes, given all the choices available to him, that Harriet Miers is the best person for this job? Last, do you think, given what we know, that the rest of the public should have any rational reason that she's the best person for this job?

I don't know. I doubt it. But I also don't know that she isn't acceptable either. Let's find out first. If after the hearings I'm not convinced, I'll help you lobby for rejection. I'm sorry you've given up on that.

Also, define best. Best resume, furthest Right, furthest right that could actually make it to a vote? Far enough right to force the "nuclear option" and the public butt kicking we'd take for being correct?

I interviewed a candidate for one of our positions here at work. She was by far the best candidate we have found so far. Unfortunately, she wanted $25k more than we could afford to pay her. "Best" didn't help us.

Posted by: Masked Menace© at October 5, 2005 02:01 PM

"Best" to me is a little different from others, but I'll take the 'typical Republican' answer.

That would be:

Someone who thinks the Constitution should be interpreted according to a plain reading of its text, based upon the context at the time, and if changes need to be made to that Constitution, they should be done through an amendment process, not through the Supreme Court disregarding its words.

My ideal answer would include someone like Janice Rogers Brown, who I think would actively work to overturn precedent that does not fit the above mold, and would try to return the US, through what *I* consider to be proper constitutional interpretation, to a much more federalist society than we currently have, with limited federal power and a lot of leeway to the states. That would entail a complete change to the Court's reading of the commerce clause, the 9th and 10th amendments, the "necessary and proper" clause, etc.

From my viewpoint, Roberts seems to fit the first definition, Clarence Thomas seems to fit my ideal definition.

But I think most Republicans generally agree that the Court should interpret the Constitution as written and reject the notion that it is a "living document".

Posted by: Brad Warbiany at October 5, 2005 02:29 PM

Best" to me is a little different from others, but I'll take the 'typical Republican' answer.

That would be:

Someone who thinks the Constitution should be interpreted according to a plain reading of its text, based upon the context at the time, and if changes need to be made to that Constitution, they should be done through an amendment process, not through the Supreme Court disregarding its words.

That seems to put a ton of people in the "best" list and doesn't yet preclude Miers.

And I'm just not convince that someone like JRB would get a vote. It would be fun to try, I just don't know that it'd work. I think we missed the boat with going nuclear when the R contingent of the moderate 14 (or whatever the helk they called themselves) stabbed us in the back.

Posted by: Masked Menace© at October 5, 2005 02:38 PM

You know, I don't know if Miers fits that definition either. And I won't have a clue for 5 years.

But if I were a betting man, I'd put money on Luttig, Brown or any number of others before I would Miers. I have something to work with there at least.

Posted by: KJ at October 5, 2005 03:05 PM

I, however, haven't yet given up on the process the founders gave us.

Posted by: Masked Menace© at October 5, 2005 03:12 PM

There is no "however" in that sentence. Neigher Brad nor I are arguing against the Constitutional process.

Posted by: KJ at October 5, 2005 03:31 PM

KJ is correct. The process is fine. We're not even necessarily criticizing Miers, as we have no information about her beliefs with which to do so. We're taking issue with President Bush and his rationale for choosing Miers against the rest of the field.

Posted by: Brad Warbiany at October 5, 2005 04:00 PM

No, you just don't trust it to give you the information it is designed to give you.

Posted by: Masked Menace© at October 5, 2005 04:04 PM

Janice Rogers Brown would never have been confirmed and the fight would have ripped this country apart. She has said one too many blunt, polarizing things. I happen to agree with many of them, but she was never a serious nominee.

I was for her months and months and months ago, but even I realized she didn't have a chance in hell.

And Brad's point about Roberts' writings is flat out wrong, unless he's referring to something different than what I'm thinking of -- old, old writings from when he was a student.

Things he wrote as an advocate for the Reagan administration are AS HE EXPLICITLY STATED, NOT HIS OPINIONS BUT THOSE OF HIS BOSS. He may well share those opinions, and you are free to fondly imagine that he does.

But do not constitute "proof" in any sense of the word.

Posted by: Cassandra at October 5, 2005 04:36 PM

MM,

You're comment is silly. The process gave us Ginsberg, Stevens, Brennen and Souter, to name a few. Should we have trusted the process then?

If I listen to the evidence, and I hear an outrageous verdict (in my opinion), I am not calling for the end of jury trials just b/c I argue that the result was outrageous.

I think Florida's process in the starved to death woman case was a good process. I seem to recall you didn't like the results and said so forcifully. You were arguing on the merits of the case, not the process that gave us a possible incorrect decision.

My criticism of Carter or BushI or Clinton was not an argument against Presidential elections.

Good process is not a guarantee of good results, nor do I have to like or accept quietly the results.

Posted by: KJ at October 5, 2005 04:46 PM

I never said the process would achieve the right results. Only that the process was capable of (again, not that it will, but can) delivering data on which to base a valid opinion.

You believe the process can not provide the data, and are thus justified in ignoring it before it even starts.

The confirmation process is simply meaningless window dressing.

Posted by: Masked Menace© at October 5, 2005 05:41 PM

Oh, I got you. Well, let me address that.

I do not believe that, per se. The confirmation process is not window dressing, but I do not believe that it will provide real insight into her voting likelihood on Roe, Kelo, ICC or federalism type issues. She can screw it up by saying something risky, but she likely won't tell us anything meaningful.

My dispute is that had the President given us a clearly qualified candidate in which we knew her voting likelihood on Roe, Kelo, ICC or federalism type issues, we could have had a more meaningful process and a needed and meaningful national debate. As it stands, we will get a lot of ducking and weaving, and we will be left as ignorant as we were before it started.

Which is what the process has become, like it or not. But some people (Ginsburg, Scalia) were open books when they came in. The process has been perverted by going stealth.

Posted by: KJ at October 5, 2005 06:29 PM

but I do not believe that it will provide real insight into her voting likelihood on Roe, Kelo, ICC or federalism type issues. She can screw it up by saying something risky, but she likely won't tell us anything meaningful.

And if she doesn't, I'll be right beside those who want her rejected. I just don't think that today I have enough data to make that judgement.

My dispute is that had the President given us a clearly qualified candidate in which we knew her voting likelihood on Roe, Kelo, ICC or federalism type issues, we could have had a more meaningful process and a needed and meaningful national debate.

Well, it certainly would have been more emotionally satisfying. But I doubt that we would have gotten a meaningful national debate. Oh, there would be a hell of a ruckus what with all the shouting, wailing, and gnashing of teeth ending in us (*maybe*) standing over our defeated opponents taunting "Take that, B*tch". As emotionally satisfying as that may be, I don't know that it actually improves anything.

I don't really care whether we win through misdirection or through 4 yards and a cloud of dust. All I care about is winning.

Posted by: Masked Menace© at October 5, 2005 06:58 PM

Sorry for taking so long to respond, Cass, but the demands of gainful employment caught up to me again.

I don't say we all have to march in lockstep ideologically. Being rather far to the Right myself, I still part ways with my conservative brethren on several issues. As an anti-statist, I am no less critical of those that want a giant, conservative govt, than those who want a giant, liberal govt. Same goes for social conservatives. While I oppose the antichristian bias of the left, I don't want the local pastor enforcing morality codes on everyone.

I also sharply disagree with those who criticize Miers for being unqualified or not "prestigious" enough academically, etc. I don't believe that the court should be limited to only those with a certain pedigree or prior judicial experience. There's not a whole lot of trial court judges left who can reason their way out of a paper bag, and the appellate courts aren't much better.

My disagreement on this whole issue is that it bothers me that we have to take a gamble on someone unknown, and HOPE she turns out okay, when we had a number of "sure things" out there.

If we are afraid to nominate the best and brightest conservative legal minds out there because the Dems will raise a ruckus, then they have already succeeded with the Bork strategy into intimidating us to self-censor our choices and capitulate before they even say "boo". I don't call such a situation "victory".

The Dems are using bullying tactics to get their way, and we just keep handing them our milk money. Tell me again why this doesn't count as appeasement?

Personally, I despise bullies and feel they deserve a boot up their collective backsides, which is why I made my previous Chamberlain/Churchill comparison. Both were honorable and patriotic men, but they had radically different ideas on how best to deal with international thugs and bullies. History remembers the indomitable resolve to "not give an inch" of one and calls him a hero, the "great compromiser", on the other hand, is remembered (somewhat cruelly) as a bumbling ninny.

Having just reread my post, I have convinced myself, once again, that I would make the world's worst politician.

Posted by: a former european at October 5, 2005 08:56 PM

afe :)

I understand where you're coming from - I've had many of the same thoughts myself.

Posted by: Cassandra at October 5, 2005 09:18 PM

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