Redstate

I have a very strong reason to believe, based on inside information, that Maura Corrigan would not overturn Roe v. Wade.

I sincerely hope she is not nominated.

I just don't think any future nominee will be worth a dime of my money or a minute of my time.

We're all Schumerists now.

We've been on opposite sides of the Miers nomination.  It will be worth it when the base can rally around a solid conservative.  We'll own Schumer.

Brit Hume said that Batchelder was an activist, I still don't want a conservative activist on the court.

I hope to hear talk about Garza on the list.  I believe that Garza has a paper trail as a true texualist ala Scalia/Thomas.  Garza would unite the base and would help continue the exodus of hispanics from the Dems to the GOP. VIVA GARZA! VIVA BUSH!

She is the one we need

I've been so overwhelmed with work that I haven't had time to participate much on RS of late.  But the news of the Miers withdrawal requires a comment.  I've been pushing for her graceful withdrawal for the sake of unity; I now have gotten what I have wished for.

I think it is important to realize that those of us who opposed the Miers nomination have a responsibility now as well.  Many of us do not oppose this President; in fact, we support and trust him on nearly all matters.  There is no doubt, however, that critics of the President will use this withdrawal to try and undermine him further.  They will see this as a weakness, as a sign that Bush is 'caving in', or some other such thing.  We have a responsibility to show our support in a real and meaningful way, as long as the President does in fact nominate an originalist justice instead of let's say AGAG.

Those of us who opposed this nomination because they were spoiling for a fight need to step up and support the President now in a big way against the Dems and RINOs who will oppose any principled conservative justice of the SCOTUS, especially someone with a paper trail.  Those of us who opposed this nomination for the sake of unity need to step up and show some loyalty now.

-TS

Harold was pounding the drum in Krempansky's thread.

Harold is simply playing the sour grapes conservative.  Just as I said, there will be a number of people who can't put aside their petty perceived slights.

Harold will continue to pepper every Miers/SCOTUS thread with this trope.  I don't think he can be talked out of it.

A shill, pimp, and worse can do that to someone.

I just saw conservatives pull out the same tactics they condemned Schumer for using - the only difference was how "mainstream" was defined.

I do not think I can trust the Beltway consevrative establishment for the foreseeable future, nor do I think that I can justify spending a dime of my money or a minute of my time to do anything but vote on Election Day - and then it's to keep a party hopelessly incompetent on foreign policy/national security matters out (specificially, the Democrats).

The anti-Miers caucas has made the confirmation mess worse.  Now, they will have to exercise something called personal responsibility and clean ti up themselves for all I care.

Backer down bud.  C'mon, you seem pretty with it.

Harold stand on his convictions and beliefs.  Do not all of the Miers bashers, gloating, as well?

I'll agree that this party needs to come together, but to do it now, because a few got what they wanted, seems a bit self centered.

...who responded to HH's point - and the frontpager responding now: there is quite a lot of negative energy flowing around right now.  Please do not add to it.  Or, as Augustine requested, glee in private.

I post on CT rather than RS mainly, but believe me, I took a lot of that childish shill stuff. I ignored it. I assume that WH intersn read these sites and I believe I have only one duty, to fight for anti-Roe Justices on scotus. Until the 93 speech came out I backed Miers (after an initial visceral negative). That 93 speech took me to instant opposition. It is not about debating and silly personal insults. Ignore those. It's about fighting for the future of unborn children (as a primary goal) and other conservative issues as a secondary goal.

agree

That Harold dislikes what certain individuals, in the course of this debate may have called him?  He's complaining about being called a "pimp" and a "shill."  I don't see him as such.  I never called him that.  Yet, I am now lumped in with other people who opposed Miers as being a "bad guy" who should be shunned by Harold and who does not deserve even the time of day from him.

Harold's issue is with private individuals, many of them political writers and columnists, and not elected officials.  They are people nobody controls - they do their own thing.

I do not know what Harold's reasoning is - "conservatives" are going to be shunned because of name-calling.  But Harold doesn't distinguish between those who may have failed to remain respectful from those tat did.  I was not in Harold's "problem group."  And in opposing Miers, I am not beholden to Harold for my opinions - he didn't elect me, I don't serve the country as a Senator.  I don't even write for a major conservative weekly that seeks his business.

I simply don't understand what abandoning the quest for textualist judges gets Harold or others, especially given the reason he puts forth.

I will cease the negative energy.

But if you read any of what I said you would realize I am not gloating.  I was seeking to engage on the question of hard feelings in the wake of this.  Whatever side you're on, I wonder if the two sides can come back together, and Harold's comments are powerful evidence that it will be difficult if not impossible.

...that a lot of us did over having her inflicted on us in the first place.

You are entitled to, if that's what you want to do.

But don't be surprised if you get as little sympathy from those of us on the opposite side of the fence as we did from you last week.

The name-calling started, as far as I saw, from the side supporting her anyway.  I'm not singling anyone out personally here, but it was coming from everywhere including the White House.

And NOW you are offended?

Oh, well.

Of your side, and I mean that. If you had the keys to hughhewitt.com the momentum might well have swung back the other way (right up until that EWD speech came out, that is).

We're on the same side, ultimately - let's get to work getting Ramesh Ponnuru confirmed!

If you don't get it, maybe you are not trying hard enough.  I haven't read all of Harolds comments, but you coming to this thread and, responding to Eric about Harold, is disrespectful,IMHO.

You hit the proverbial nail, with "textualist judges".  Though I and others see that this has importance, many feel that it wasn't important enough to divide this party.  Further, to question the resolve, or ability of the POTUS.

As far as the gloater, I wouldn't pee on them if they were on fire.

Needs to get his butt in gear and appoint someone quickly.  Time's a-wasitin', and Sandy is still writing opinions.

It's cool: we're just trying to get everybody to breathe a little, that's all.

Gloating is not proper.

Anyone with a paper trail will be blocked. All the DEMS have to say is that the conservative radicals did it to Miers.

Constitutional option will no longer work. It is out of play due to the attacks on Miers.

All Bush can do is nominate a paperles moderate. The conservatives have made the President weaker in his standing and he will not appoint a "known conservative". The nominee will not be Garza, Brown, Lutting type.

I doubt the anti-Miers crowd will rally around the president when he nominates another unknown.

Loyalty to you only applies when you like what is being done. The anti-Miers crowd has not been loyal to the President.  

McConnell is not necessarily a friend to conservatives.  He is buddy buddy with Prof. Cass Sunstein up at Chicago Law (do you really like the stakeholder theory of corporations?), he clerked for the same judge (Skelly Wright) as Susan Estrich, and he was involved in the Boy Scouts case.  Now I'm not saying this does not make him qualified - in fact, he is light years more qualified than Miers - but if you are looking to energize the base, you will have show you are more conservative than simply dissenting in Gonzalez v. Castle Rock.  Look in the direction of Alito, Luttig, or a pleasing stealth candidate in Estrada.  Or maybe Edith Clement will decide to play.

Are my law student colors showing through?

Jones or Clement?

well clement was supposedly "really number two" to roberts, so maybe she'll come back.  however, unlikely - no doubt W passed over some qualified women before he got to miers, and that list probably contained jones and clement.  

i predict W will stop with the identity politics and go with estrada or "scalito"

here

Advantage:  Can be confirmed by Thanksgiving.

Disadvantage:  None that I can think of.

The three criteria Bush must employ in making the next nomination, in order of importance:

1. Unimpeachable Integrity and Professional Excellence
   
2. Unqualified and unambiguous conservative judicial philosophy
   
3. Confirmability

In other words, who is the most conservative candidate who can survive the Durbin/Schumer/Snowe/Collins/Chafee gauntlet?

Might be Ted Olsen. I would think he would be harder for Chafee/Collins/Snowe to oppose. I'm not sure we can count on the wobbly Republicans on Lutting and E. Jones. I hope I'm wrong about that.

Yes, Olsen is 64. Lewis Powell was 64 when confirmed, and served 17 years. I would take 17 years of Olsen instead of 35 years of Alberto.

In the future, when the lying Kook Left revises history, as they always do, to say that Miers was withdrawn only because the judicial committee hearings would've "spilled the beans" on Bush's "payoffs" to Ben Barnes through Miers and the Texas State Lottery--"payoffs" to stop him (Barnes) from talking about how Bush got into the Texas Air National Guard "ahead of others," etc.,etc.,etc....

When that happens, and it will, I hope even the most anti-Miers conservatives might take a moment to speak up and correct the record, and take the credit then too.

Why has no one mentiond Janice Brown???  Its time to wipe that smirk off of Chuckies face and possibly to make Kennedys head explode.  Wouldn't you love the hearings when she laces into those racists?  We bloggers should hash this out thoroughly because if you dont think someone from the WH and the Dimwits aren't paying attention, you are  mistaken.

Garza could be confirmed.  If the democrats dared to fillibuster, Graham and DeWine would say that it was not a extreme circumstance & would break ranks with the gang of 14.  The constitutional option would be implimented, and Garza would win nomination 53-47.  (Reps - Chaffe, Snowe, Collins, + Nelson [NE]).  

A paper trail is welcomed.  This is not 1987.  We are not in the minority and in fact we have 55 Senators for crying outloud.  A Hispanic/minority or a woman with a paper trail would be more easily confirmed by the senate than a white male.  

That's a terrific compliment and all the more appreciated coming from somebody I respect.

Sorry for the spelling error. I come from Quayle country, so I get it honestly.

Being from Wisconsin, I can tell you Diane Sykes is VERY conservative and VERY smart.  Plus, she's young, attractive an well-spoken.  The nomination would sail through, since Kohl and Feingold would not oppose her.  She'd be a great choice.

Clement would be somewhat of a stealth.  Jones has a longer, more solidly origionalist papertrail.  Rumor has it that Bush41 "thought she was mean" or something like that which is holding her back.

Dems might object that he argued Bush v. Gore (not that that kept him from the SG position, but SCOTUS is different).

He's so well qualified that all Dem objections will slide off.  Dems object to Olson and they expose themselves as the real extremists.

JONES FOR SCOTUS!

Janice Rogers Brown is the best choice.  Its time to frame the inevitable filibuster fight in the best possible context.  Think of the newspaper pictures: inarticulate, liberal white men attacking an eminently qualified, well spoken AA womam, nominated by a republican president.

I'm not happy about having Miers withdraw, for some of the same reasons that I wasn't happy to see her nominated in the first place (does that make any sense?)  The people who supported her were quite convincing, awfully creative, and very passionate, and they almost convinced me:  it took more than ten days before I finally settled into a kind of grim visage of opposition to her nomination.  

Let's move forward now, hope the President picks someone we can all be proud of and, if need be, fight together for.  If I've been snippy with anyone here over the past few days, I'd like to apologize:  this and the Plame thing have been a real torture rack for me.

as the criteria we should use to rate judges by.  I personally (and many other fiscal conservatives) do not care that much about Roe being overturned.  If we can get a strict conservative on the court and Roe gets overturned as a byproduct, great, but if it doesn't I am not going to cry.  The reality of the situation is that even if Roe gets overturned little will happen.  A handful of states may outlaw abortion, most may implement a ban on late term abortions, but nothing will happen nationally and abortions will be more or less avaialbe to anyone who wants one just like now, the only difference being that it may be a little harder to get one.  Roe is but a single issue and one that I do not beleive will have a whole lot of importance regardless of which way it goes) in 25 years.  I want a judicial conservative who will not make law from the bench and who will aptly and intelligently persuade people to his/her line of reasoning, not simply a vote against Roe.

"so I get it honestly"

I thought you got it from The Corner :)

Hmmm.

I don't think Bush has any "wiggle room" at all.  Miers was an awful choice and should have been withdrawn days ago.  If anything Bush has less "wiggle room" now than he did before.  He'll have to restore lost trust with the conservative base, or at least those members opposed to Miers, by going further to the Right and nominating a solid conservative and a solid Textualist.

Anything else is an abdication.

Hmmmm.

I nominate ....

Jessica Alba.

Because, Holy C**p Batman!, the Supreme Court really needs an extreme makeover!  :)

One cannot understate how important overturning Roe is to the majority of conservatives who care deeply about the Supreme Court.

It's great that fiscal and business conservatives want a conservative justice too, but if this nominee does not at least try to overturn Roe, the Republican Party is done for.  Try winning elections without the James Dobson fans; it's not possible.

Theodore Olson may have another intangible in his favor--the same "sympathy factor" that propelled Jean Carnahan into the Senate after the tragic death of her husband in 2000.

Olson's wife, Barbara Olson, was killed in the plane that crashed into the Pentagon on September 11, 2001.

Hmmmm.

I don't think many people are partying up right now.  This isn't a thing of glee or happiness.  Frankly I'm relieved that Miers has withdrawn, not gleeful.  Yes I agree that anybody engaging in unnecessary snarkiness should refrain and restrain himself.  

But I really think we dodged a deadly bullet here.

If it'll make amends I think I'd approve of Miers appointed to a federal bench, just not SCOTUS.  Then we can revisit this debate in a couple years with an actual trackrecord of Miers's judgements and see what the outcome is.

while I think he would be a great justice, BvG is way more in your face than anything Roberts did.  Also, I'm not sure he has Roberts' affable demeanor, and he'll run into the same claim of SG privilege that Roberts did, wihtout Roberts two year history on the appellate bench as at least some kind of record.  

22 voted against Roberts, I can imagine a lot more voting against Olson, though I think he would be confirmed.  

Kozinski?  Easterbrook?  Posner?  These are top-flight judges who would make excellent additions to the Supreme Court -- assuming, now, that we're actually focused on quality and a conservative judicial philosophy.  The fact that none of these fine judges would sign a blood-oath to overturn Roe should not be a disqualifier.  Indeed, though I know that some won't agree, there are some Constitutional issues at least as important as Roe's reversal.

von

she would be a female-legitimate-originalist-with-a-paper-trail - Roberts Plus Plus!

and her writings on the wrongly decided Roe would be a fantastic debate to have.

ANY good solid choice here puts the pressure on the Rodney King Caucus (Gang of Fourteen) and the Red State Democrats.   A delicious thing to anticipate!

PS - Clement would be a disappointment, in my view - squishy soft.  she would be another attempt by President Bush to "thread the needle" rather than bash down the door.  

are also many people who vote Republican that do not like the Religious influences on the party, and they cannot win elections without them either.  Besides, as long as Roe is law thos religious voters will vote Republican, if it is overturned, who knows.

Hmmm.

A lot of conservatives are looking to the long term, not the short term.  The short term is that Pro-Lifers just don't have the votes.  Assuming the next nominee is a solid Textualist that means we might have 4 votes, and that's only if Roberts abandons stare decis and votes to overturn Roe.  If Roberts doesn't abandon stare decis and takes the position that Roe is now the law of the land, then we've got **3* votes.

So I think Dobson et al are well aware of such reasonings and they won't go ballistic if Roe isn't immediately overturned.  If they think Roe will be overturned immediately, then they need to recheck the basis for thinking that.

Frankly it'll be anywhere from a couple more years to a decade before the court will be reformed enough to even potentially overturn Roe.

Roe should be overturned because it is bad constitutional law.  Roe is right to recognize a right to privacy in general, as the new Chief Justice has conceded (simply look at the 4th Amendment).  However, the constitutional right to privacy is one that prevents the government from intruding into your home or your person, not a private citizen intruding into your home or your person.  By extension, the Constitution does not grant a right to privacy as applied to the issue of abortion, and sometimes not even to other parts of your body (see Superior Court of CA v. Hecht, regarding one's ownership of excised cells).  In any event, conservatives should oppose Roe on Constitutional grounds rather than Christian grounds.  Let the people in the states make policy choices.  We need a judge who puts federalism over dogmatism.  Give me Alito for 500, Alex.

TJN

No time to gloat... We are about to have a nominee we need to rally around...

But figuring the only way you will learn is after you get burned...

You see, when the next nominee comes up, Schumer is going to ask questions about his ideology and views in cases.  The nominee will appropriately refuse to answer - he/she can't give any appearance of prejudging cases.  At that point, the filibuster is on, and when conservatives complain, he will say his requests were reasonable because, after all, George Will and National Review went after Miers on the same sort of grounds.  And at that point, it's over.  None of the Gang of 14 will go with the nuke when the conservatives have a clearly established trail of hypocrisy.

It's not just that the borking of Harriet Miers offended me (both it, and being labeled a shill and pimp were bad enough).  It's just the grossly stupid short-sightedness that was engaged in that has led me to lost all trust in the beltway conservative establishment (ACU, Vigeurie, CWA, etc.).

I don't see why I should spend a dime of my money or a mintue of my time to get conservatives out of a mess they created, particularly when I was vocal in my opposition to the making of said mess.  It's a little concept called personal responsibility.

Yeah, his name hasn't been mentioned much in Erick's dispatches.  He's got a great resume - 3 years in the Marines, 11 years in private practice, a year as a state court trial judge, three as a federal district judge, 14 as a federal appeals judge.  He'd make history as the first Latino, and of course he's a lifelong Texan, which may appeal to Bush.  He's not young, but is two years younger than Miers.

I haven't looked at his opinions much, but he's certainly got some plusses.

she is young enough (54).  she has a solid conservative record, but not the controversy that JRB would bring (with her comments about "socialism" and so forth).  she was NOT one of the 'filibustered judges'.  she has twelve years in private practice.  she would be great on television and in the hearings.  and, possibly most important, she has the vigorous support of Lindsey Graham, who would be key if the Republicans had to break the filibuster.

my prediction - he submits Williams, the Dems threaten filibuster, the Republicans assemble the 'constitutional option' - and the Dems blink at the last minute.  a totally satisfactory outcome, in my view.

if this nominee does not at least try to overturn Roe, the Republican Party is done for.  Try winning elections without the James Dobson fans; it's not possible.

And what happens if and when they do? If, as you say, the Republican party cannot win elections without the motivation of SoCons to enact their agenda, what do you suppose will happen if they succeed? Move on to legislating to have it banned entirely? I guarantee you that's an electoral loser--a solid majority of the country does not want abortion outlawed, and while there is a majority that wants things more restricted than they are now, that majority--along with Republican governance--will evaporate once the goalposts move to total criminalization.

The pro-life vote is extremely important to the Republican party. According to exit polls, abortion is THE decisive issue for many voters.

If you subtract hard-core pro-abortion votes from hard-core pro-life votes, this issue tips a net 10% of the electorate toward Republicans, without which Democrats win. How else did Bush win a majority of the Catholic vote against a self-proclaimed Catholic Democrat (Kerry)? Because Bush proclaimed himself pro-life, while Kerry was all over the map, and the Catholic Church is officially pro-life.

Overturning Roe may not be the decisive SCOTUS issue for all Republicans or conservatives, but Bush (and future GOP Presidential nominees) would lose a crucial part of the GOP base if he nominated a pro-choice (or uncommitted) judge to SCOTUS.

For those conservatives for whom abortion is not important, would you want Hillary nominating the next SCOTUS justice?

that Harold is saying is that since conservatives basically dumped Miers because of idealogy, the Dems are going to use that against us and try to dump the next conservative justice nominee based on idealogy.

Bush's spin is fine -- we wouldn't release papers.

The GOP's spin should be -- she wasn't qualified.

That way, we avoid what Harold is saying will be our downfall.

You say the Constitutional option is off the table.

I say that the reason that Bush pulled her nomination rather than sending it to the Senate was to preserve the Constitutional option.

If nomination goes forward than you may have had a number of Republicans thinking filibuster and that WOULD have wrecked it.

I will say that I am further frustrated with the Gang of 14 from back when than I have been previously.  Not having that filibuster wuold have been nice along the line.

The withdrawal of this nominee isn't a triumph, it's a sad day.  It may be a relief to myself and others, but it's the kind of relief that you feel when the bulldozers finally clear away the remnants of your home after it caught fire and burned down.

Most importantly, I wish people would stop calling those who either supported or objected to Miers as some kind of shill for ... Democrats.  Because if we're going to do that, we should decide which Democrat?  Charles Schumer, or Harry Reid?  Here are their views from the Washington Post, which form a nice pair of bookends for the people who have either bruised egos or a tendency to gloat, from today's WaPo:

Sen. Chuck Schumer, D-N.Y., called Miers capable but added, "This clearly was the wrong position for her."

"The radical right wing of the Republican Party killed the Harriet Miers nomination," said Democratic leader Harry Reid of Nevada, who had recommended Miers to the president. "They want a nominee with a proven record of supporting their skewed goals."

I got a real belly laugh out of Reid's statement..."supporting their skewed goals."  Like the goal of picking the most qualified person for the job that the party can agree on, one whose writings are clearheaded and has a record we can trust, one who can demonstrate to Senators in her own party that she is A-list material without having to dig through the White House's internal papers to satisfy their doubts?  In other words, appointing a person of unassailable competence?  Are those the "skewed Republican goals" Senator Reid is referring to?

We're back to the sleeping lawyer case.

Which would play very badly on TV.

Not sure if it would matter or if it would cause us to lose 4 votes from the Constitutional option.

I don't think they have to overturn Roe, but they do have to okay a ban on PBA or the party will be toast.

because they can count on these single issue voters, the Republicans have become fiscally irresponsible hacks.  If and when the religious conservatives win, they will then not have to vote Republican and many may not, thus costing us future elections all for a single issue.  I would rather take my lumps now, than rely on a single issue block and ruin the future.

Olson would be Bork Part II.  Dems still hate him - try Googling "Arkansas Project" and "Ted Olson".  Plus, Bush v. Gore.  Plus, some folks may have long memories about the dispute in the 80s that got him investigated by an overzealous independent counsel (see: Morrison v. Olson).  Plus, he seems like a gruff old white guy on TV.

my dream scenario

I find the Roe issue fascinating.  My take, as an pro choice, libertarian atheist, is I want to see Roe overturned tomorrow.  Like you guys who want a fight for a conservative justice, I want this fight before the American people.  If you guys win and the majority of people want to ban abortion, well, we live in a democracy and the majority has the right to be heard.  I'm just tired of the tug of war.  Let's get it in the open, take sides and let the chips fall where they may.    

Janice Rogers Brown, Edith Jones, Miguel Estrada, J. Michael Luttig, Michael McConnell, Sam Alito, and Viet Dinh.

It should be one of those. Probably in that order. :-)

Here's what will happen:

1. The next nominee will go before the Judiciary committee.  Senator Schumer will ask him questions about his views on cases and his ideology.
   
2. The nominee will refuse to answer, since he would be in volation of the judicial canon of ethics - he would appear to be pre-judging a case.
   
3. At that point, Charles Schumer will oppose the nominee and take it to a filibuster.
   
4. Many on the right, including those who borked Harriet Miers, will complain.
   
5. Schumer (and others) will cite George Will, folks here, Rush Limbaugh, David Frum (and the rest of the Cornerites), and others who opposed Miers on grounds that were little more than ideological.
   
6. The Gang of 14 will not go with the nuclear option.  The moderates there will properly view the conservatives who borked Miers as being hypocritical (with good reason) with regards to Schumer's complaints.
   
7. The nominee will languish in a filibuster, or eventually ask for his nomination to be withdrawn.

We're worse off than we were when Jim Jeffords jumped.

I hope good health returns quickly to your family.

I remember the days of sick babies etc. all too well.

Kozinski and Posner are too libertarian.  And Posner's paper trail makes Bork look like David Souter by comparison (he even has a blog!).  Plus, he's almost 70.

If we could pick without thought to confirmability or political considerations, Easterbrook might be my #1, ahead of McConnell or Ken Starr (talk about unconfirmable!).  He's brilliant, witty, prolific, he's in his late 50s, he thinks deeply about issues of legitimacy, he's detail-oriented (i.e., he notices problems in cases that weren't pointed out in the briefs) without being a trees vs. forest guy.  He even has some bipartisan cred despite being a known conservative - he had a political-appointee job in the SG's office in the Carter years, and his brother writes for the New Republic.

Now that Miers has withdrawn, it would be smart to name the nominee as soon as possible.

With Fitzgerald showing signs of a runaway investigation, we need something to unite and rally the troops. A strong conservative nonimmee could do just that.

Word is coming out that a lot of Senators went to the White House and said that they didn't want to support this nominee, and Bill Frist called last night to say the votes were not there to confirm. This was handled the way it should have been, i.e. NOT the McCain, run to the camera way. Kudos to the Senate here.

... judicial philosophy, not ideology. These two things are very different.

And furthermore, why the hell should we be afraid of Chuck Schumer?

Do we really have to have candidate that we are sure will rule right on this issue? The law is settled law and our obsession with overturning it will not reduce abortion in this country. The trouble with Meirs was she was chosen solely because she would vote "right" on this issue. Yet she is no constitutional scholar. Anyone with common sense can see Roe v Wade is terrible law but there is a lot more to a nominee then one issue. We need a strict constructionist. Corrigan is one there are many others.

Based on what the President has been doing lately -- bowing to the Democrats on Davis-Bacon and with the Fed nomination (it should have been Hubbard), I suspect that we will get a consensus candidate.  My prediction is that it will be either Karen Williams or Consuela Callahan.

I'm not happy with these choices, of course, but the Presidency has been weakened lately and the party has leadership problems in Congress.

There was agreement throughout the political spectrum that this woman wasn't qualified...  That needs to be the backdrop to it all...  Everyone can agree on that.

Harriett, Harriett, Harriett...my Pretty Woman,

I am saddened to hear the news of your decision to withdraw your nomination, but politics can be a bitch.

Tonight - me, you, the Penthouse (because it is the best) 103 degree jacuzzi, caviar and toastpoints, grapes, and chilled Veuve...I am all ears, with broad shoulders to cry on and 70 inches of leg therapy to wrap all around you.

You gave it your best shot! Hold your head high and don't forget my philosophy, may the best man win, me!

Fondly,

PJ

http://patrickjfitzgerald.blogspot.com

I am pointing out what he will do.  How he will justify future filibusters.  Who he will be hiding behind.

Conservatives just lost the nuclear option.  They also have made his push to consider ideology legitimate.

Those of us who opposed Miers' nomination are guilty of "borking" her.  So we're character assassins.  We're "grossly stupid" and "short-sighted".  I can also recall terms like "sexist", "elitist", and "disloyal" being used in various segments of the discussion at various times.

Unlike calling someone a "shill" or a "pimp", all of those terms are simply legitimate ways of expressing a difference of opinion, I suppose.

I concur that the tenor of the debate was less than it should have been.  But I still find it hard to see that you have much more reason to feel offended than anyone else does.

Roe v Wade isn't "law".  It was judicial activism, the very thing that a "strict contructionist" would oppose.

But that does not make any sense. No Republican voted to fillibuster Miers. No Senator even came out against her.

The democrats can say whatever they want on the next nominee but the fact that Miers withdrew has no bearing what-so-ever on the nuclear option.

Get a life.  And some class.

#8 Any Republican Senator who is up in 2006 who refuses to back a conservative SC is defeated soundly in their re-election bid due to their base staying home in droves.

And that is exactly why your scenario will not come to pass.

Are you forgetting how this single issue has led to numerous Republican victories?

The smartest thing Dubya could do right now would be to call all of the RINO bluff's and nominate JRB.

Make them chose between their politcal survival or their political extinction.

And BTW...

Who in the world is advising John McCain right now? He still wants to be the Republican nominee in 2008 right? Wouldn't volunteering to personally shepard JRB through the Senate put him in the pole position for the nomination? Something like that could go a long way towards healing the wounds between him and some members of his own party.  

but it seems to me there is something to consider here that I haven't seen or may have missed so far.

Now, I don't know any of the favorites named at RS today personally, so I have no impression either way on any of them (how about a poll today?).  It would seem to me that, since the media has already put forth the notion that W is "dumb" and only made the Miers mistake in the first place because Rove was too busy avoiding indictments to stop him from doinig it, that we should root for a new nomination immediately.  I heard some hack from the left say something about how the far right wing of the party MADE W withdraw the name, and if he takes too long and the name whacks the bees nest, they'll just say the far right wing MADE him select that candidate.

You can follow that story to its conclusion.  Like we say the MoveOn wingnuts have taken over the left, they'll just say the VWRC has taken over the right.  I say name him/her today!

From all I've read here, JRB is the best choice because of temperament, independence, intellect, controversial-ness, and expereience (I know there's a camp with a good argument for all of the names here so far).  The race and gender issues are irrelevant to me personally, but we can use the race and gender card on the left for a welcome change.

I can commit that I will be actively involved with my Texas Senators to support the Constitutional option.  

Just some thoughts.

How about a poll?

But an obsession with a nominee just for this is short sighted. Bush picked Meirs because he knew she would vote right on one issue Roe V Wade and conferred with religious leaders about it. They all thought it was a great choice yet it turns out she was a one issue person. Abortion will decrease by changing hearts one at a time no over turning Roe which will only give it to the states and Abortion will remain legal almost everywhere.

With Roe still out there we have an issue that energizes religious conservatives and catholics to vote GOP. If Roe is overturned we get mixed results and probably only slightly less abortions overall but we lose an energized religious base and gain a much angrier and determined pro-abortion opponent.

I am pro-life, but overturning Roe means GOP will not be in the majority any longer. I guess I have to admit that it's not the main issue for me, because realistically we cannot criminalize even most abortions. Not until our technology catches up and we can have 1 day old fetuses viable outside the womb. I prefer to have a Conservative majority in power progressing on other issues.

Roe v. Wade isn't law. However, Casey is the judicial statute we look to now for clarification regarding abortive matters.

If we rock the boat too much we won't get the slam dunk we deserve.

Plus Easterbrook wields a wicked pen.....sometimes sarcastic, always pithy and to the point. (And prompt....he probably has the fastest average turnaround time on his opinions than anyone in the federal judiciary)

He would bring real intellectual heft to the court.

without the grating personality.

will make abortions illegal for poor people in Alabama and other religious conservative states.  If you have the money, you can live in Birmingham and fly to California of New York and have an abortion every year if you wanted to.  

Yeah, I was just reading a district court opinion in September that broke some interesting ground on an issue I follow.  Last week, a well-written and persuasive opinion from Easterbrook came down reversing it.  He's the rare judge who regularly persuades me of things I did not previously believe were true.  You should read Howard Bashman's interview with Easterbrook, it's a classic.

No glee here, just as you suggest, a sense of relief that what had to be done was done.  I hope that the WH doesn't interpret this as having gone down because only of qualifications and cronyism charge.  I'm not sure how others will react to a better qualified stealth candidate from outside the inner circle, but my reaction will be about the same.  If the President has the will to fight on principled grounds, I believe we can defeat a fillibuster.

thinking filibuster if the President were to appoint one of the recent appointees involved in the whole Gang of 14 creation.  Namely, Pryor, Brown or Owens.  I can't see the conservative/moderate Democrats supporting a filibuster on Luttig, Williams, Batchelder or the like.  Probably not even McConnell.

Schumer, et al, will raise some noise but they don't control the keys to a viable filibuster attempt.

Why not just let the states decide on the availability of abortion services?  The North East, Great Lakes and West Coast will undoubtedly decide to preserve availability.  The South and Central parts of the country might decide that this is not something that they want to support.

If a couple in Alabama want to have an abortion, they can travel to some place where it's available.  It's a free country and you can get around by Greyhound really cheap from just about anywhere.

I know very little, but I do like what I've heard.  Do you have the basic specs and some good juicy dirt?

If you can't see the difference between asking for proof of a judicial philosophy (in accordance with the President's promise) and asking for specific demands on future cases, then you're not going to be all that useful to conservatives in judicial fights anyway.

So, have fun in whatever fills this void in your free time.

No one has ever been able to give me a specific example on why Karen Williams would be fillibustered.

Again I challenge anyone. Please give me one specific example on which the Democrats could fillibuster Karen Williams. I'm just not seeing it.

I was mainly thinking of the really poor that couldn't even buy a greyhound ticket.  But once Roe is overturned, I'm sure some groups will spring up to help poor people travel to states where they can have an abortion.  

and let him ask ideological questions.  Who cares?  

I do not understand why we should be afraid or cower at the thought that a conservative nominee might express their beliefs in public.  Why is this such an awful prospect?  Are we that ashamed of what we believe?

I don't think overturning Roe would cause religious voters to defect from the GOP. We have seen the struggle to pass the partial-birth abortion ban, which was passed twice during the 1990's, vetoed twice by Clinton, passed again and signed by Bush, then overturned by JUDGES.

Even if Roe were overturned by a 5-4 majority on SCOTUS, religious conservatives, having watched babies murdered in the womb for 30+ years, would turn out en masse against any Democrat who campaigned to reinstate Roe, and for any Republican who would appoint an "insurance" SCOTUS justice who would ensure that SCOTUS would remain pro-life for decades to come. Pro-life religious conservatives wouldn't let their guard down so fast, after having been burned for so long.

Besides, religious conservatives would have other issues even after Roe is overturned, such as banning gay marriage and fighting anti-Christian intolerance by the ACLU, which have been imposed (as was Roe) by JUDGES, not the legislature, and only a President can replace judges.

Overturning Roe v. Wade would not cause religious conservatives to abandon the GOP, unless Democrats started embracing their views, which doesn't seem likely anytime soon.  

as much fun as it is to explore this particular topic, let's nip this threadjack in the bud. One of you should start a diary and discuss it there.

This approach may work indefinitely on a donkey, but most Christians are far smarter than a donkey. If the GOP were to follow your advice, Christians would eventually figure out that they were being strung along, and would never forgive the GOP for using such a insidiously dishonest tactic.

...But does not a member of SCOTUS make.  ;)

(I'm sure she could be very a effective judge for a beauty pagent (either gender) though!)

Clement would be a disappointment, in my view - squishy soft.  she would be another attempt by President Bush to "thread the needle" rather than bash down the door.

I have seen this claim made often of late, but nothing to back it up.

For the record, I opposed the Clement idea back before Roberts actually for many of the same reasons I opposed Miers - Clement has not (as yet) distinguished herself enough to merit promotion to SCOTUS.

But the meme that Clement is somehow "a back-door O'Connor" comes up repeatedly, but with no proof that I can see.

So, can someone help me out here?

Does Clement really merit the antipathy?

Or is this just a case of "no paper trail, we really don't know what she thinks"?

Because there's a difference...

You have only 47 votes for the constitutional option. The gang of seven and Specter are right now against the use. You are right that Graham and Dewine would switch for Garza if nothing bad came from his past. But the other 5 are totally against the nuclear option. Also many people have said Specter did not join the "Gang of 14", because he was chairman of the judiciary comittee. He took enough heat at the beginning of the legislative term. Specter is against the nuclear option.

The White House knows that they have only 49 votes.

You mean the Judge Kozinski who apparently just voted with the majority to uphold race-based school enrollment in Seattle?!

So long, and NO THANKS!!!

If you cant afford a bus ticket, you can't afford the procedure anyway. I'm sure there will be plenty of private groups providing support there.

You have only 47 votes for the constitutional option

Garza has a much more solid paper trail than Estrada, and is more confirmable.

The Senators did not come out for or against Miers, but that is not the problem. The anti-Miers crowd made the "up or down vote" campaign useless. Yes the Senators can say there was never a vote, but the DEMS will say the radical right did not allow the Senate to vote on the Miers nomination through pressure.

Finally, the nuclear option has 49 votes with Specter sitting on the fence as having the magical 50th vote. After the Miers debacle their is zero chance that Specter will vote for the nuclear option.  

Say goodbye    

Williams wrote the opinion - reversed in a Rehnquist opinion - "overturning" Miranda v. Arizona.  Many liberals would regard this as unconscionable right-wingery.

What would be funny about a fight over Dickerson, of course, is that Williams' decision was based on Congress having passed a statute making non-"Mirandized" confessions admissible in federal court.  It would be entertaining to see Durbin, Schumer, Leahy etc. try to denounce this decision without mentioning that it involved deference to Congress, given that one of their big talking points with Roberts was the importance of deferring to Congress.

You mean the Judge Kozinski who apparently just voted with the majority to uphold race-based school enrollment in Seattle?!

Wow.  I suppose, technically, you're correct that this was Kozinski's holding in his currence.  That said, the Seattle plan was (1) not an affirmative action plan and (2) Kozinski's concurrence was based on the idea that these kinds of decisions should be left to local school boards (so long as local school boards do not endorse one race over the other).  [BTW, see page 3 of his concurrence for his rejection of affirmative action.]

Doubtless, however, your inaccurate spin would carry the day in any fight over a Kozinski nomination.  To some, ideological purity matters more than brilliance.

Let Specter vote down the nuclear option, thus allowing the filibuster to continue.  That is not the end, though.  There is this nifty thing called the 2006 election.  Bush, Rove, et. al., if their still the shrewd politicans we know them to be, will seize upon this to galvanize the base into action at the polls.  Let us not forget: five of the thirty-three Senate seats up in 2006 are Dems representing red states.  Don't doubt that a Democrat who filibusters a SC nominee with Red State values won't have an impact on their re-election.  

I practice in the 4th Circuit, have appeared before Karen Williams, and think she would make a good justice.  But if the dems want to oppose her, they might focus on the Wilkerson case (166 F.3d 667) -- a decision in which Judge Williams ruled that police didn't have to give Miranda warnings to defendants, if there was other evidence demonstrating that their confession was voluntary.  She upheld a Congressional statute saying this exact same thing, even though DOJ attorneys had been prohibited (by both Democratic and Republican Attorneys General) from arguing in support of the statute.  I love the opinion, because it demonstrates deference to Congressional intent, as long as that intent is a reasonable interpretation of the Constitution.  But the Supreme Court overturned her decision, so the dems could argue that she is "out of the mainstream."  (Of course, she could counter in the hearings that a majority of the members of both the House and the Senate must have been "out of the mainstream" as well -- since they were the ones who passed the statute she upheld.) She is smart, conservative and articulate, and I believe would stand up well to democrats' questioning.

most of the info i've been able to get on her comes from confirmthem.com

I will try to write a diary this evening when I'm not supposed to be working, and highlight her for those interested.

Janice-Rodgers-Brown

...Is unquestionably an important part of judicial philosophy.

If a judge thinks "localism" trumps an injustice then, yes, that's a big problem.

But I guess Libertarian-types will attempt to 'spin' this differently.

To some, ideological purity matters more than brilliance.

One man's "ideology" is another man's "philosophy". And, yeah, "brilliance" doesn't count for much if it's in the employ of the wrong philosophies.

Only when "brilliance" is married to the right kind of "philosophy" does my heart get all a 'twitter.

The fact is nobody has a crystal ball (how many people were just saying there was no way Miers would be withdrawn?), so it is pointless to concede defeat without even attempting to win.

I don't know the alleged "inside information," but Corrigan, though I think she has no chance, would be a fabulous choice, and given her originalist/textualist philosophy would certainly be with Scalia and Thomas on Roe.

But I do not believe that the Dems would have the guts to fillibuster her based on that decision.

Siding this publically with criminals against our police/prosecutors would be too stupid for even the Dems to go through with. I'm sure even they realize how incredibly stupid this would be.

There may be a lot of big talking. But in the end they would not fillibuster and Williams would get through easily.

You and those who borked Harriet Miers have now rendered it an acceptable reason to derail a nomination to the court.

I thought conservatives wanted to go back to that day.  I was wrong.

I would be more than happy to see him get nominated.

You have nailed the issue exactly.

If anyone can express a view on the Kelo eminent domain decision having been rightly or wrongly decided, why not Roe v. Wade as well?

What can be gained from sneaking the overturn of Roe v. Wade in through the back door?

You're either ready to rumble or you're not.

Why not get it on?

is going to do much to help the democrats in '06.

Many people may not care about appellate courts, but they notice the SCOTUS.  Most of them aren't going to see the "extremism" in a Garza or a Jones or similar.

The Republicans could not get Brown, Owens, Pryor through the Senate. Your answer is to let a Supreme Court nominee sit in limbo for 1 year.

That means Sandra Day remains on the bench and votes on very crucial cases this session. And she would start the new session the following year.

Also the Republicans are down 2 Senate seats in the 2006 election. Santorum and Dewine are done.

They will not be relected. The only seat right now that the GOP can pick up is Minnesota, but that is 50 - 50 at best.

just picking a fight will not help.    

If you are a conservative who cares about the judiciary, now is not the time to celebrate. While it is comforting to know that a "stealth" nominee has been withdrawn, you must work to see that another "stealth" nominee does not get chosen.

President Bush campaigned on selecting justices in the mold of Scalia/Thomas. It is important that those who put him in office write letters and make phone calls to your representatives to see to it that Bush's campaign promise is honored.

The Republicans could not get Brown, Owens, Pryor through the Senate.

Brown, Owens and Pryor got through the Senate.

I agree with tbaugh - Corrigan is about as solid an originalist as one can get.  Unless you are willing to share this "inside information," Jeremy, I continue to believe that Corrigan is one of the most (if not the most) solid originalists jurists on the bench today.

(Raised eyebrow) Or were you claiming the Deal as a Republican win?

We had the facts correct, is all. I deliberately avoided commentary.

But (judicial) philosophy is a key issue, and always should be. It has never been off-limits.

That is a separate issue from ideology (though I am not a believer that they are wholly separate - there will clearly be overlap), which is more interested in specific outcomes in specific cases.

But you're spouting a lot of disinformation. To wit:

philosophy used to be off-limits...

Never has been. This is the key issue in looking at confirming judges.

"borked"

She was never Borked - nothing that was said about her (that I saw) was untrue. Or even exaggerated.

...have now rendered it an acceptable reason to derail a nomination to the court.

You just can't get off this meme, can you?

For the zillionth time - Miers was opposed because she was underqualified for SCOTUS. She did not have what it takes. (She may be a nice lady, and a great person, but that's not a qualification for SCOTUS.)

Questions about her philosophy/views came only later.

But the qualifications issue was the thing that soured most of us on her from Minute #1.

You'll do a lot better getting people to pay attention to your views if you'll stop distorting what really happened.

(Bob Dole: "And tell him to stop lying about my record.")

I agree this is old.  But, if you could get him on the Court for the next 10-15 years, would you take it?  I would.  

His main selling point to me it that he is a sound judicial conservative who is can be confirmed very, very quickly.  

I looked into the problems with respect the the Arkanses project, and I don't think the public would stomach the Democrats bringing back the Clinton years and scandals to attack this nominee.  Olson could be on the court by Thanksgiving if the Republicans pushed it.

"Schumerists"???

whew.

"I personally (and many other fiscal conservatives) do not care that much about Roe being overturned."

Then you dont' care about the constitution.  Roe isn't about abortion, Roe is about whether the Constitution means anything.

Social conservatives won't abandon the party if it fails to criminalize doctors who abort nationwide.  The issue will go back to the states and nationwide emphasis will turn to things like gay marriage.

Uh, because of Roe.

Because of Roe.  Roe is the problem.

You were the only voice causing me to second guess what I'd drawn from elsewhere.

IJB, read Kozinski's concurrence, because you can't assert that Kozinski favored "racial preferences" in his concurrence if you (1) actually read the concurrence; (2) actually understood the concurrence; and (3) actually are interested in the truth.  

There are grounds to disagree with Kozinski on this decision, but your consistent misportrayal of his position is more than a little annoying.

Why are we talking about him?

Ponnuru for SCOTUS!

I cannot predict the outcome of a filibuster if the nuclear option is voted down.  The nominee may or may not languish for a year if that happens.  

The point of my post is that an attempt by the Democrats to thwart the confirmation of a nominee who is clearly conservative will galvanize the base into voting in 2006.  The President and the Congressional Republicans desperately need something to rally around going into the election year, and a filibuster will provide that rallying point.  

While it is true that Day might remain on the court another year, gaining the confirmation of a conservative successor along with a few extra Senate seats as a bonus is not a bad trade-off.  

I am inclined to agree with you that DeWine will lose, however I believe that will be attributable to the dire straits the Ohio GOP finds itself these days.  Regarding Santorum, perhaps he will lose, but it is far less likely if a fired-up base turns out.  Still, the lay of the land favors Republicans if Democratic Senators who represent red states are forced to support a filibuster.

Janice Rogers Brown There is no D in the middle (like the Raiders)

I'll tell you why we're talking about Kozinski, Leon:  Agree with him or not, he's one of the most fascinating jurists on the planet.  Here, by the way, is his concurrence in the Seattle case mentioned above (some matters removed for length):

KOZINSKI, Circuit Judge, concurring:

My colleagues in the majority and the dissent have written extensively and well. Given the exacting standard they are attempting to apply, I cannot say that either is clearly wrong. But there is something unreal about their efforts to apply the teachings of prior Supreme Court cases, all decided in very different contexts, to the plan at issue here. I hear the thud of square pegs being pounded into round holes. Ultimately, neither analysis seems entirely persuasive.

I start as did our eminent colleague Chief Judge Boudin of the First Circuit, in commenting on a highly-analogous plan adopted by the city of Lynn, Massachusetts:

[The] plan at issue in this case is fundamentally different from almost anything that the Supreme Court has previously addressed. It is not, like old-fashioned racial discrimination laws, aimed at oppressing blacks, e.g., Brown v. Bd. of Educ., 347 U.S. 483, 74 S.Ct. 686, 98 L.Ed. 873 (1954); Strauder v. West Virginia, 100 U.S. 303, 25 L.Ed. 664 (1880); nor, like modern affirmative action, does it seek to give one racial group an edge over another (either to remedy past discrimination or for other purposes). E.g., Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995). By contrast to Johnson v. California, --- U.S. ----, 125 S.Ct. 1141, 160 L.Ed.2d 949 (2005), the plan does not segregate persons by race. See also Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967). Nor does it involve racial quotas. E.g., Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 98 S.Ct. 2733, 57 L.Ed.2d 750 (1978).

Comfort v. Lynn Sch. Comm., 418 F.3d 1, 27 (1st Cir.2005) (Boudin, C.J., concurring).

These are meaningful differences. When the government seeks to use racial classifications to oppress blacks or other minorities, no conceivable justification will be sufficiently compelling. .... Similarly, when lawyers use peremptory challenges to exclude jurors of a particular race, thereby denying them the right to participate in government service, they must justify their challenges based on objective, non-racial considerations; justifications based on race will be rejected out of hand, no matter how compelling they might seem. .... When government seeks to segregate the races, as in Johnson, the courts will look with great skepticism at the justifications offered in support of such programs, and will reject them when they reflect assumptions about the conduct of individuals based on their race or skin color. .... When the government engages in racial gerrymandering, it not only keeps the races apart, but exacerbates racial tensions by making race a proxy for political power. .... Programs seeking to help minorities by giving them preferences in contracting, ..., benign though they may be in their motivations, pit the races against each other, and cast doubts on the ability of minorities to compete with the majority on an equal footing.

The Seattle plan suffers none of these defects. It certainly is not meant to oppress minorities, nor does it have that effect. No race is turned away from government service or services. The plan does not segregate the races; to the contrary, it seeks to promote integration. There is no attempt to give members of particular races political power based on skin color. There is no competition between the races, and no race is given a preference over another. That a student is denied the school of his choice may be disappointing, but it carries no racial stigma and says nothing at all about that individual's aptitude or ability. The program does use race as a criterion, but only to ensure that the population of each public school roughly reflects the city's racial composition.

Because the Seattle plan carries none of the baggage the Supreme Court has found objectionable in cases where it has applied strict scrutiny and narrow tailoring, I would consider the plan under a rational basis standard of review. By rational basis, I don't mean the standard applied to economic regulations, where courts shut their eyes to reality or even invent justifications for upholding government programs, ... but robust and realistic rational basis review, ... where courts consider the actual reasons for the plan in light of the real-world circumstances that gave rise to it.

Under this standard, I have no trouble finding the Seattle plan constitutional. Through their elected officials, the people of Seattle have adopted a plan that emphasizes school choice, yet tempers such choice somewhat in order to ensure that the schools reflect the city's population. Such stirring of the melting pot strikes me as eminently sensible.

The record shows, and common experience tells us, that students tend to select the schools closest to their homes, which means that schools will reflect the composition of the neighborhood where they are located. Neighborhoods, however, do not reflect the racial composition of the city as a whole. In Seattle, "as in many other cities, minorities and whites often live in different neighborhoods." Comfort, 418 F.3d at 29 (Boudin, C.J., concurring). To the extent that students gravitate to the schools near their homes, the schools will have the same racial composition as the neighborhood. This means that student patterns of interacting primarily with members of their own race that are first developed by living in racially isolated neighborhoods will be continued and exacerbated by the school experience.

It is difficult to deny the importance of teaching children, during their formative years, how to deal respectfully and collegially with peers of different races. Whether one would call this a compelling interest or merely a highly rational one strikes me as little more than semantics. The reality is that attitudes and patterns of interaction are developed early in life and, in a multicultural and diverse society such as ours, there is great value in developing the ability to interact successfully with individuals who are very different from oneself. It is important for the individual student, to be sure, but it is also vitally important for us as a society. ....

To borrow Judge Boudin's words once again, the plan here is "far from the original evils at which the Fourteenth Amendment was addressed.... This is not a case in which, against the background of core principles, all doubts should be resolved against constitutionality." Comfort, 418 F.3d at 29 (Boudin, C.J., concurring). I am acutely mindful of the Supreme Court's strong admonition only last Term that any and all racial classifications must be adjudged under the strict scrutiny standard of review. See Johnson, 125 S.Ct. at 1146 (citing cases). But the Supreme Court's opinions are necessarily forged by the cases presented to it; where the case at hand differs in material respects from those the Supreme Court has previously decided, I would hope that those seemingly categorical pronouncements will not be applied without consideration of whether they make sense beyond the circumstances that occasioned them.

When the Supreme Court does review the Seattle plan, or one like it, I hope the justices will give serious thought to bypassing strict--and almost always deadly--scrutiny, and adopt something more akin to rational basis review. Not only does a plan that promotes the mixing of races deserve support rather than suspicion and hostility from the judiciary, but there is much to be said for returning primacy on matters of educational policy to local officials. Long past is the day when losing an election or a legislative vote on a hotly contested issue was considered the end of the matter--at least until the next election when the voters might "throw the rascals out." Too often nowadays, an election or a vote is a mere precursor to litigation, with the outcome of the dispute not known until judges decide the case many years later.

....

While it's tempting to adopt rules of law that give us the ultimate say on hotly contested political questions, we should keep in mind that we are not infallible, nor are we the repository of ultimate wisdom. Elected officials, who are much closer to ground zero than we are--and whose political power ebbs and flows with the approval of the voters--understand the realities of the situation far better than we can, no matter how many depositions and expert reports we may read in the quiet of our chambers. It therefore behooves us to approach issues such as those presented here with a healthy dose of modesty about our ability to understand the past or predict the future. It should make us chary about use of the strict scrutiny standard of review, which proclaims us the ultimate arbiters of the issue and gives those who oppose the policy in question every incentive to turn litigation, to paraphrase Clausewitz, into a continuation of politics by other means.

.... I share Judge Boudin's preference for resolving such difficult issues by trial and error in the real world, rather than by experts jousting in the courtroom. When it comes to a plan such as this--a plan that gives the American melting pot a healthy stir without benefitting or burdening any particular group--I would leave the decision to those much closer to the affected community, who have the power to reverse or modify the policy should it prove unworkable. It is on this basis that I would affirm the judgment of the district court.

But nothing in this concurrence has me molified.

As with many legal issues, his position is "defensible" in that it is not obviously defective.

But I'd much rather have somebody who seemed so blithely sanguine about these kinds of efforts to "force" school enrollments to "reflect the city's population."

So I'd line up with the dissenters.

I was becoming increasingly distressed by the lamentations of those in opposition. It was like walking through a mothball factory. The little squeals were pitiful. My personal preference is Brown. That is the fight worth fighting.

in a few points.

Why won't the constitutional option work due to Miers?  Unless I'm mistaken, the whole structure of The Deal is simple: no filibuster (i.e., Dems vote for cloture), except in "extraordinary circumstances", in exchange for not nuking the rule requiring 60 votes for cloture.  Why has Miers changed the calculation?

If the Deal is dead along with the Miers nomination, then, well... is that so bad?

Second, I do think you want to temper your remarks re: loyalty.  Most of those who opposed Miers did so very reluctantly, out of loyalty to this president who despite many shortcomings remains rock solid on the War.

Third, I think after Miers, the president has no choice but to nominate a strong, known conservative judge, and let the fur fly.  This is a fight that is twenty years in the making, ever since Bork became a verb.  Maybe it's time, and by trying to avoid that fight, Bush weakens himself and the GOP base of conservative support.

-TS

is that not simply a waste of time, as well as a pretty big hit politically?  After all, Pryor, Brown and Owens all went through due to The Deal.  What excuse would the 7 Dems in the Gang of 14 have to break The Deal if Pryor, Brown and Owens are nominated to the SCOTUS?

In fact, I think exactly the opposite is true.  If Bush nominates someone who is brand new, then the 7 Dems might make something up about how radical and outside the mainstream the nominee is and so forth and claim 'extraordinary circumstance'.  I don't see how that flies for a nominee they've already conceded is fit for a Court of Appeals and isn't an 'extraordinary circumstance', except for some lame blanket excuse that a nom to the SCOTUS is always an extraordinary circumstance.

-TS

... that you disagree.  As Kozinski himself recognizes, the other two sides of this three-sided debate have merit.  But I want to make sure that you know the subject of your disagreement, i.e., this battle doesn't simplify to "yes affirmative action" or "no racial preferences."  And, although you may not agree with Kozinski's position, you'd be hard pressed, I think, to argue that its unconservative or lacks all merit.

I've heard interesting things about Kozinski.  What I've heard, I've liked...

McConnell would also be fine by me.  

I'm less impressed with some of the others, and I'll toss a dark horse in the mix:  Ricardo Hinojosa of the Southern District of Texas (McAllen division).  A superb trial judge.

Senator Warner would also vote for the constitutional option if Garza was fillibustered.  Garza is not an "extroadanary circumstance." 55 - 7 - Spector + DeWine + Graham + Warner = 50. 50 + Cheney = 51 votes.  The votes are there for this option if the Dems dare fillibuster.  Anyway, do you really think that red state democrats would vote against Garza?  The Nelsons would be blown out of office as would Bob KKK Bird.

Senator Warner would also vote for the constitutional option if Garza was fillibustered.  Garza is not an "extroadanary circumstance." 55 - 7 - Spector + DeWine + Graham + Warner = 50. 50 + Cheney = 51 votes.  The votes are there for this option if the Dems dare fillibuster.  Anyway, do you really think that red state democrats would vote against Garza?  The Nelsons would be blown out of office as would Bob KKK Bird.

This is BS.  You are not an optimistic Reaganite.  What is with your can't win pessimistic mentality? You should cheerlead for DailyKos.  This is outrageous.  Are you a Houston Texans fan?

(and thanks to you too Kowalski)