Redstate

I'm just wearing out the Cornyn office here in DFW.  They are going to hate me.  We have an ongoing love/hate relationship from when Arlen Sphincter was up for Judiciary chairman.

The point you make about these 2 nominations discouraging originalist geniuses from speaking their minds -- I've thought of that, but not seen it out there either.  Good point.

I mean really, how do we look Edith Jones in the face?  She was originalist when originalist wasn't cool.....

I'll have to chew on that one.  I do hope you're wrong, but I think the incentive here is pretty clear.

I am getting sick and tired of people insisting that Bush chose Counsel Meiers because A) she is a woman and B) she is a loyal friend of Bush.

I don't think Bush took either of those facts into consideration, Bush believes that she is the best person for the job, man or woman.

I think we need to trust Bush, he is a Christian and he knows that Counsel Meiers will rule based on a good Christian interpretation of the Constitution.

I think we will be pleased with the new Bush supreme court and the direction it will lead the country.

Another moby. Who wants first shot?

From a wide field of veep candidates, he chose a family friend who currently lived in Texas.

He has since littered the executive branch with people from Texas, people from the Bush family xmas card list and other select Bush cronies...

The one thing we had left was, "hey he is good on judges."  He could have made up for all of it by following Roberts with another young, brilliant jurist.  Instead he played into the looney left's caricature...

This is proof that personal friendship is more important to this president than qualifications...  Brownie at FEMA was one thing, but the SCOTUS is supposed to be different.

This is devastating.  

This Bush vs. Reagan stuff is really childish.  

Face it, I liked Reagan and all and thought that he was a good President, but this is the Bush Republican Party now; Reagan is gone.  The Bushes are the true Christian conservatives, none of this astrology and stem cell stuff -- it has to be said.

Let's put it this way, who would you have voted for in 2000 primary George W. or Ron Jr. -- thought so.

You can nostalgize about the past all you want but this is the Bush party now.

JEB 2008!!!!!!!!

The thought had crossed my mind also.

Lets not force some poor kid out there to be a John Roberts and watch his every word from now until he's 50 just so he doesn't spoil his chances of getting on the Supreme Court one day.

I just don't think it's healthy to ask that of a poor kid.

I'm talking about appellate federal judges, and how they are ruling currently, but thanks for the support.

if judges refrain from authoring sweeping diatribes about matters that aren't truly before them, it could very well be a good thing.

Remember when Terri Schiavo's case came before the 11th Circuit?  The court decided to deny the appeal on narrow, legal grounds, and then one judge had to fly off the handle and write a concurring opinion berating Congress for passing such a flagrantly unconstitutional statute.

I might have agreed with some of the points that judge made but overall, our system is not served well when the branches of government take gratuitous shots at each other.  That's one of the reasons why courts view a finding of unconstitutionality as the absolute last resort in deciding a case.

By the same token, it's really not necessary for a circuit judge to author a long concurrence explaining why he thinks a Supreme Court case was wrongly decided, and it just creates more disrespect for the judiciary.

I like this diary and I think it makes a very interesting point.  It's just that, as a policy matter, the disincentive you predict might actually be a very good thing for the judiciary.  If you want judges to be restrained and modest, a good starting point is to encourage them to stick to the facts before them, to refrain from shooting off their mouths about issues that aren't before them, and to avoid opining on constitutional issues except where necessary.

Bush has yet to give us an O'Connor or a Kennedy.

I'm not talking about judges flying off the handle about issues that are not before them. Let's examine Luttig, for instance, because he's the one I'm most familiar with.

The one decision that would supposedly have caused Luttig some trouble was the issue over the Virginia PBA ban. Now, as Luttig approached that case, pre-Stenberg, he noted very simply that the people in front of him frankly admitted to never performing the procedure outlawed, and therefore were without legal standing to bring suit. When Stenberg was decided less than a year later, Luttig reversed himself and properly allowed the Virginia statute to be struck down.

Now, on that basis, a man of brilliant legal mind and consistent jurisprudential philosophy is shunned because he's done the right thing, legally speaking, on a prominent case. That's flippin' absurd, if you don't mind me saying so, and it creates incentives for judges to kowtow to liberal jurisprudential hegemony at all levels of the federal judiciary, and that's disgusting to me.

Had never given us an O'Connor until he'd given us an O'Connor. :-) I'd remind you that the jury is still out on Roberts.

Has Bush picked excellent judges up until this point? Until he actually gives us an O'Connor or Kennedy (or spit-Souter-spit), I am inclined to give him the benefit of the doubt. I believe he's earned it.

Hmmmm.

Frankly this conservative will NEVER again vote for anyone related to Bush.  Not now, not ever.

although I think you're assuming too much, or maybe you know more than I do, about why Luttig is not the nominee today.  I mean, he faithfully enforced Supreme Court precedent when the issue came back before him, so I'm not sure how much hay anyone could make out of that decision.  Personally, I'd be significantly more troubled by his decision on the Endangered Species Act case, and didn't he have an important case or two on executive power?

When I wrote my comment, though, I was thinking more along the lines of Garza's concurring opinion regarding Roe v. Wade, which I think you could definitely characterize as a dealbreaker for his nomination.  Yeah, it's a shame someone should be denied a SC nomination because he honestly expressed his views, but I'm not sure if it was an appropriate function of the judicial role for him to express those views, in that particular case.

Bottom line, I think Luttig would have gotten confirmed one way or the other, and in a different political climate, where the President's approval ratings were higher and there wasn't so much else going on, I think Luttig could have easily been the nominee.  There are so many other factors in play here I'm not prepared to agree that he was vetoed just because he made one ruling that wasn't "politically correct."  After all, Roberts had his french fry case, he defended it by saying he was just following the law as best he could, and life went on.

I'm not thrilled by this pick.  I spent the afternoon looking for new golf clubs for my Christmas present to myself that I'll pay for with money that would have gone to the RNC instead.

But your post made me think about the next President.  Specifically the next Democrat President.

We've seen a significant generational shift in the GOP side of the Senate, especially on the Judiciary Committee, since Ginsburg and Breyer got confirmed.  Kyl, Cornyn, Coburn, etc.  It's no longer a go-along-get-along body.

Could one benefit of all of this garbage with 'stealth' nominees force the Dems to have to do the same when they are in control of the WH?  Will Kyl, Cornyn, Coburn, etc. react so blandly to a Ginsburg-clone or will they raise the temperature so much to force a change in the calculus?  

I don't think that the Dems would allow the filibuster to survive if they ever regain power, but so long as we control the Senate, could this have the net positive of at least forcing the Dems to either find stealth nominees or more moderate ones at least?

I'm grasping at straws, admittedly, but this diary made me think about that while I was waiting for the golf club order to load...

Let me be the first to say that I'm not entirely surprised that Bush picked Harriet Miers. Last week I made numerous posts which , based on my personal sources, suggested that Bush's close friend from Texas, Priscilla Owen, would be the nominee.

The fact that we are now learning that Harry Reid was an important factor in the president's decision making process suggests to me that there were only two names on the list. Owen and Miers. Both ladies are personal friends of Bush from his Texas days, and both are friendly to big business concerns. Senator Reid told Bush that of the two nominees, Owen would be filibustered, Bush caved and went with the "safe" choice.

The fact that Miers seems not to be qualified for the position, and was chosen over distinguished legal minds such as Luttig and Alito, suggests that Bush is not serious about putting the "most" qualified candidate on the bench.

Hmmmm.

Ok.  So how many solid known conservatives has Bush appointed to a federal bench?

I'm excluding Roberts and Miers because the jury is still out on both.  But excepting those two, how many solid known conservatives has Bush appointed?

It's one statistic that I can't find anywhere.  I know 3 got through the Senate, out of 220+.  But that can't be right can it?  Have only 3 conservatives been appointed by Bush in 5 years?

Is there a list?  Does anyone know?  Is there actually a basis for trusting Bush on this subject?

shrug I'm hoping someone on RedState knows the answer.

No offense, but after Reagan and Bush I, I don't give anyone the benefit of the doubt as a President, when that must translate into giving the benefit of the doubt to the nominee.

If anything the whole Roe issue is keeping some very good legal minds off the court, because they are deemed "too controversial" well frankly, I would rather take on the fight, and appoint one of them, than have this for a nominee.

In the end, it hurts the SCOTUS to have this type of litmus test (the Dems require you be pro choice, while the GOP tries to find the stealth candidate and gets burned more often than it ends up with a worthy).

Hmmmmm.

Nobody ever made money betting on Republican politicians having a spine.

Sorry.

I believe a majority of Bush nominees have been Federalist Society members, which I would consider a pretty reliable conservative calling-card.  But if you're asking how many judges he has appointed in the mold of Owen, Rogers Brown, or the other "nuclear option" judges, I guess that was pretty much the rightmost fringe.

Hmmm.

Got a list?  A link?  Proof?  Anything?

Not that I don't think you might have a point.  It's just difficult to debate someone when you have to go and write "because this guy think so".

And you think Owens is part of the "rightmost fringe"?  Then who exactly is a mainstream conservative?  As an example?

Maybe fringe was a poor choice of words.  I don't like playing the game of trying to pigeonhole judges on a left-right spectrum, because it's not that easy.  Let's just say Owen is a strong conservative.  Out of the conservative mainstream?  I dunno, really.

I don't know if you'll find a list because there really isn't an objective set of criteria for things like this, nor does the Federalist Society rank judges' conservativeness on a scale of 1 to 10.  But in general, as a practicing lawyer, it seems to me that Bush has continued Reagan's practice of remaking the federal judiciary along more conservative lines, from the bottom up.

The Supreme Court is a tough egg, and the political considerations are unique, so one shouldn't assume that just because the SC nominees have been a little squishy, the lower court nominees have been equally squishy.  Again, nothing to offer in the way of backup except my judgment.

This is one of the oddest arguments against I have seen yet.  Basically

you are saying that every judge is only a judge because they are gunning

for SCOTUS.  God help us if that is the case. Really. I won't discount that some

may chose their words carefully in writing a decision with an eye on a better

assignment. But you are essentially arguing that no judge will decide a case as a

conservative would because of 'court politics' - in effect becoming a dishonest

judge by letting their own personal views and interests and not the law decide the

case.    

There has been a level of shortsightedness on the board Re: Miers. President Bush is looking at the long term and that is where his critics should be focused. If you like looking backwards there is another party you can always join.

But if you're looking, these are pretty sweet irons. =D

-TS

She was actually first mentioned to Clinton by Orrin Hatch.  Clinton was thinking of nominating Bruce Babbitt and asked Hatch how that would go.  Hatch said no, and recommended either Ginsburg or Breyer.  Hatch claims that Clinton said he hadn't thought about Ginsburg before, and ended up picking her for that spot.  

While Ginsburg is on the left side of the current court, I'd rank her as more conservative than, say, Thurgood Marshall.  

Where does the term come from, by the way?  Was the first moby actually named 'moby'?  

here

Who told supporters to flood conservative sites pretending to be conservative caricatures, or somesuch.

They're as lame as the musician, which is to say, as lame as Andrew Sullivan, and that's lame.

From a wide field of veep candidates, he chose a family friend who currently lived in Texas.

with Dubya's VP choice? IMO, Dick Cheney is the perfect VeePee.

And I just don't see where he has littered the executive branch with

people from Texas, people from the Bush family xmas card list and other select Bush cronies...

If the people he happens to know and trust can do the job he expects them to do, then that is hardly littering or cronyism. And with a family that's so entrenched in the political scene as the Bush's, how would it be possible not to become close to people with compatible philosophies and include them in his administration.

agree on something.  Finally.

must also be held accountable.  I'm talking about Mark Levin, who vetted Justice Kennedy for the Reagan administration and is now screaming about Miers.  If we are going to complain about Reagan giving us Kennedy, I don't want to hear from Mark Levin or any others like him lecturing us as to why this is a bad pick.  

...but the more I thought about it, the less impressed I was.  

Let's assume that some conservative judges, who want to be considered for the Supreme Court, change the substance of their jurisprudence in order to remain viable as candidates.

What kind of justices would these so-called conservatives be?  If they were unwilling to stick to their convictions given lifetime tenure on the district or circuit courts, why would they stick to their convictions on the high court?  What would moor them when, isolated from the outside world and subjected to the influence of Ginsburg, Breyer, and Stevens?

What would the voting records of those justices look like?  Scalia and Thomas?  Or Souter and Kennedy?

First, pretend you are me. You're in law school at a nice, prestigious university, an ideological conservative who was motivated to enter law school because you believed in the cause of textualism, and reigning in the out of control judiciary. Given today's nomination, do you bother with a career path that includes the federal judiciary, or go straight for the corporate big bucks, knowing you'll never pass muster in a Congressional hearing.

Second, pretend that you're Michael J. Luttig, and that Richmond Medical Center for Women v. Gilmore has come before you. Here are a bunch of pro-abortion loonies who are suing you over a procedure they all freely admit they don't perform. You further understand (as Luttig clearly illustrated that he did), that the statute is clearly confined to the D&X procedure, and as far as you can tell, will apply to absolutely nobody in the State of Virginia. Further, you know that some cases are working their way through to the SCOTUS on these D&X bans, and are likely to be ruled on in a year or two.

Now, you can dig your head in the sand there and pretend that for a guy like Luttig, with a resume and a mind like his, the possibility of a SCOTUS nomination shouldn't matter. We all have our delusions of principle that we like to indulge, but we should recognize them for what they are. And no, that doesn't make him a less qualified jurist. What that does make him is more inclined to punt the issue up the chain to the SCOTUS, rather than doing the legally correct (and ultimately worthless) thing of granting the injunction in question because the plaintiffs did not have the legal standing to sue. If you think it's worth it that a guy like Luttig ought to deliberately shoot himself in the foot over such an inconsequential decision  on principle, then you and I are just going to have to part ways on that point.

I agree with everything you said. And it should be the case, however, I think we have to deal with a couple of political realities:

1. Bush is in a position of weakness. This was a nomination from weakness, he had to have a stealth nominee. Much like Roberts was a stealth nominee in a swap for O'Connor the first time around as he had to have a stealth nominee to move the court from O'Connor to Roberts, although that went out the window with the death of Rehnquist and Roberts was elevated. If this moves the court one step over to an anti-Roe stance, it couldn't be overt.
   
   
2. I don't think we hold the entire Republican conference on an anti-Roe nominee, and with the President's weakness, the constitutional option will not be invoked (or worse yet, we lose the vote on it).
   
   
3. If Miers and Roberts join with Scalia and Thomas; Roe is still 5-4, but the parental notification case is coming as well as the PBA case, we need to have the new nominee seated by the time those cases come before the court as they will more than likely be 5-4, but I would rather have Miers ruling on them than O'Connor (or a 4-4 tie)

I would rather not have a stealth nominee. It sucks, but the political landscape on this day requires it.

The thing is, nobody could read the case I just cited and conclude that Luttig ruled the way he did because he thought Roe was decided wrongly. He clearly and unequivocally stated throuhgout his analysis that his only question was whether the plaintiffs had the legal standing to sue on this issue. And when Stenberg was decided, Luttig appropriately vacated the decision of the 4th Circuit (his own) even though the Virginia Statute in question had a much stronger protection for the life of the mother clause than did the Nebraska statute which the SCOTUS struck down in Stenberg. There was absolutely no smoking gun for Luttig - and I'm singling him out because I'm most familiar with his work, but I'm betting you could say the same thing for Alito, et al.

The thing is, we've got over a decade of other decisions from Luttig to read, and we know instinctively where he'll come down, based on his history of dealing with completely unrelated case. The bad news for the Donks is, you can't sell the case to the American Public that the nominee is some sort of anti-woman freakshow based upon your personal hunch, absent any evidence. I really think that either Luttig or Alito had the requisite votes to get confirmed, even in the current political climate.

If they didn't, the President should have darn well tried. Failed nominations expend capital on both sides, and I've yet to see the Senate with the balls to shoot down two consecutive SCOTUS nominees.

dems don't seem to be afraid to take on a fight, while the GOP tends to sit back and cower and cave.

I think right now if the roles were reversed a dem white house would thumb its nose at the miniority party and tell them to stuff it.

Where you might see more stealth candidates would be if the GOP still controlled the senate.  

I do think the days of 98-0 or similar votes are over.  I suspect from here on out most SCOTUS candidates are going to have their nominations approved with much more opposition on the record.

I can't see the Republicans, or even most of the more conservative Democrats on the gang of 14 supporting a filibuster of someone the caliber of a Luttig or McConnell. I think Karen Williams or Alice Batchhelder would have been nomination slam dunks (a la Roberts.).

Frankly, this pick reeks to me of cronyism hiding behind a "our capital is weak" political calculus.

John Roberts had his eye on the Supreme Court LONG before he was on the DC Circuit.

It is important to reach future Supreme Court justices while they're still in their formative years. "Don't act like a Conservative" is not a good message to be sending them.

Cronyism isn't a bad word for George W.  Where would he be without cronyism and nepotism?  Running a Chevrolet dealership in Waco, Texas?

Nice people.  But damn, they hate your phone calls.  :)

Could have been 0-4 or 4-0 and you're worrying about a SCOTUS nominee? Get your priorities staight!