Redstate

Can you respond to this?

John G. Roberts

Given that the general consensus is that he was both picked and confirmed on the basis of being an essential unknown.

Clarence Thomas.

One year on the D.C. Circuit.

Before then, a Reagan political appointee. And not quite at the level of White House Counsel.

to the process involved, which is what I'm debating. Sure, Thomas has turned out to be a splendid justice. But it IS another example of rewarding someone for stealth. Further, as I pointed out, liberals need never be stealthy. Staff attorney for the ACLU? Come on over, you'll sail through.

So again, which kind of opinion/decision is still being incentivized? Thomas doesn't disrupt the pattern that if you're a circuit judge or even district judge, you'd better hope that you either get yanked up quick, or don't do anything remotely conservative in your tenure.

The nomination of William "never been a judge" Rehnquist did not stunt the professional development of Antonin Scalia...

The nomination of Clarence "Stealth" Thomas did not deter Michael Luttig and Janice Rogers Brown from speaking their minds.

From being elevated to the SCOTUS. For better or worse, they are effectively screwed for now.

So, I'm an enterprising young law student who bit the bullet and chose a top 25 school with about 100 grand in student loans and I'd like to end up as an appellate judge somewhere, maybe even on the SCOTUS. What do you suppose the lessons of Luttig and Brown have taught me?

Then it seems that President Bush is being held to a higher standard than even the Rehnquist, Scalia, and Thomas nominations. Previous confirmation battles have not prevented the appointment of conservatives known or stealth.

SCOTUS seats are not an entitlement for brilliant conservative law students.

Remember, outcomes over process.

SCOTUS seats are not an entitlement for brilliant conservative law students.

You know I didn't say this. My point was about how the deliberate passing-over of numerous brilliant and qualified individuals specifically because one might infer from their record that they are (gasp) conservative will necessarily lead to less conservative jurisprudence at the federal level. If you want to make SCOTUS, keep your head down and vote liberal - liberal votes are okay.

And, for the record, that is an outcome, and an undesirable one at that.

Where is our party finding these "60 year old virgins"?  First Souter now this.  Does she live with her mother too?

that you guys scream bloody murder whenever liberals bring up a nominee's religion, saying it's a religious test for public office and all that, but you seem to have no problem citing a nominee's religion as a reason to believe they will be your kind of judge.

Hypothetically, if Miers is not an originalist, but she wants to overturn Roe v. Wade because her religious belief is that abortion is murder, then we're right back to the super-legislature model of the Court - only with the votes adding up differently.  And conservatives have been campaigning for quite a while on the theory that that's not how the game should be played.

One's religion may have a lot to do with how one feels about life issues, but it would seem completely irrelevant to whether one has an originalist judicial philosophy.

Proposed: Harriet Miers nomination, irregardless of her political philosophy represents a stark departure from President Bush's clear promise regarding judicial nominations.

to overturn Roe v. Wade. It's not going to happen unless the hardcore right-wing grassroots get a firmer grip on the reins. The plutocratic wing plays abortion as a social card, but if it ever went state-by-state, the GOP would have a hard time hanging on to power. Hence the ambiguous two; who knows how they'll vote, but its hard to imagine either having the inclination or the force to push the vote 4-5.

In the end, the US abortion debate is at stalemate. You could probably get a pretty rapid 80% consensus position on abortion right now with the public, where early voluntary abortions are legal, and the later ones that make for terrifying photographs only in the case of physical danger to the mother.

But nobody trusts the GOP, who they think want to abolish it altogether, including things like the morning after pill. So you're left at status quo, with the Dems taking what are IMO rather extreme pro-choice positions, and America, despite its conservative streak, having the most liberal abortion laws in the world.

I would humbly suggest that those of us debating SC nominees currently NOT use even the Ginsburg nomination as any kind of precedent.

The US Senate has changed too much for that comparison to work.

And, the process of finding and putting forward judicial nominations (not to say confirming them to the Circuit Court level or SC level) has changed too much as well.

It's not an apples-to-apples comparison anymore.

Those days are over, for both sides.

Would a conservative meet with gay rights activist in 1989 and express 'general support for equal rights for gays and indicate she opposed discrimination based on sexual orientation.'?

Read it here: http://washingtonblade.com/thelatest/thelatest.cfm?blog_id=2742

Remember, in 1989, even many Democrats wouldn't meet with gay groups, especially the ones from the south.

for too many reasons.  If you voted for the republicans expecting conservatives you are screwed because you ended up with a larger government and now a liberal to moderate supreme court that Gore or Kerry would be satisfied with.

IMHO, teach you that life isn't always fair, but you should still be true to yourself and honest about who you are.

Harriet Miers is the right nominee for this particular battle at this particular time.  Especially given who she will be replacing.

Liberalism took forty-plus years to become fully enrenched in the US.  There is absolutely no way to change that overnight.  The electorate is not ready for that just yet.  I tend to agree with Nick on that point.  When the electorate is red enough to demand smaller government, that is when we will have smaller government.  In the meantime, direct the government's expenditures toward conservative policies and projects, and grow the big tent.  

I'm confident President Bush is looking at the big picture.  Congress, both House and Senate, has moved to the right (# of seats held) since 1994.  The electorate has moved two points to the right (50/50 vs 52/48) since 2000.  

I'm a 51 year old Redstater, and decidely more patient than many of our younger conservative members.  This slice of the pie will move the Court a little more to the right.  Not as much as I would like, but none-the-less, it will be to the right.  I'm also confident President Bush will get the opportunity to nominate another Justice.  Most likely to replace Justice Stevens or Justice Ginsburg.  The Court will move a little more to the right.

Patience really is a virtue when it comes to politics.  Continue to promote conservative values, and when the electorate demands it, give them what they want.  When the electorate demands conservative policy and fiscal restraint, we can enjoy the fruits of our labor.

In approximately eight more years, we will have undone what took the liberals forty-plus years to accomplish.  

The navel gazers are nabobing about another Souter. That's silly. The Court will almost certainly move to the right as a result of the nomination and confirmation of Harriet Miers. And here's why.

You don't get it - it's not enough to be a "conservative" (and even that we're taking everybody's "word" on [wink, nudge]).

What we wanted was the best qualified nominee. A brilliant legal mind. Someone in the mold of Scalia, or Bork, or even Roberts (maybe).

We're not getting this here.

We wanted the "Best of the Best".

Instead we're getting "Bush's 'Good Buddy'. And, lemme tell ya, she's on the 'team'." [wink, wink]

At this point in his 2nd term, Bush needed a Home Run (maybe even a Grand Slam) of a SCOTUS pick. Instead, what we're getting is a Ground Rule Double.

Not good enough.

This is a promise that you never should have believed, IMO.  To be blunt about it, if he doesn't deem it politically feasible to appear at a pro-life rally outside the White House, what makes you think he's going to run the political gauntlet for a socially conservative justice?

For better or worse, the man has never been a political risk-taker.  Tax cuts are easy.  A split-down-the-middle stem cell compromise is easy.  Going after Saddam is, or anyways was, easy.  Appointing no-name judges is easy, as long as it's kept on the down-low, since no one cares except for political junkies.  And on the other side of the ideological divide, drugs for seniors is easy, and rebuilding NOLA is easy.

But social security reform is tough, and he gave it up.  Tax reform sounds easy, but is actually pretty tough, and you see where that's gone.  A marriage amendment is tough, and he gave it up, even going the other way by coming out for civil unions before the election.  Even with the judges, when it was no longer on the down-low, and the Gang of 14 took things into their own hands, he gave up.  Nary a fight.

This is the way it's been from day one.  If you believed the promise, frankly, that's your fault.  I'm not sure you've ever even gotten an unequivocal statement that abortion is wrong (certainly not in any high-profile way), just a bunch mealy-mouthed stuff about the "culture of life" and whatnot. He's never given you any reason to believe.  

"Miers will cast the votes that O'Connor wouldn't. And that's all that matters." Because some strangers say so?

I don't know any of those people vouching for Miers. For all I know, they are just hacks. But I can read the opinions and public statements of Luttig, Brown, Jones and Garza, etc and I know where they are likely to come down on the big questions. I don't need people to vouch for them. I can see for myself.

I didn't vote for "Trust me." I voted for a president who promised a strict constructionist. Miers' isn't one, won't become one over night, which means she'll drift to the left over time. Hell, she isn't even an O'Connor.

She may be smart, but a lot of lawyers are smart and they aren't qualified to sit on the Supreme Court. Miers is a third tier, at best, candidate who doesn't stand a chance arguing against the libs on the court. This whole thing is a joke.

Let's be honest, okay? This stuff about Bush letting us down because he passed up a stable of great judicial minds misses the point. Well credentialed nominees have dissapointed in the past, so qualification tells us little about future decisions.

This comes down to Roe, and Roe alone. Conservative frustration has been pent up for decades, and we all wanted a nominee whose cards were on the table about Roe. But such a nominee would never get Specter's vote, and thus would never make it to the Senate floor.

Bush has always kept his word. That he would betray us now, when he was already on shaky ground with his base is illogical. Those who point to his spending as a betrayal, by the way, forget all the editorials before he was elected in 2000 about his troublesome social agenda. The man is consistent in both the good and the bad. I suspect we will find that Miers is exactly what he promised the next nominee would be. But to get such a person through, she must be stealth.

Finally, we have enormous power, as Rathergate showed. Bush may not be up for re-election, but those offering advice and consent are. If Miers testimony raises enough concern, Conservatives like us can consolidate in opposition. I just ask that we give her more than ten hours before we judge. If we don't want Miers, we don't have to have her. The Senate will listen. They know who keeps them in power, and it ain't Bush anymore. They're responding to the pork concerns right now, and they'll respond to Miers opposition, too.

As a Democrat who is uncomfortable with abortion and opposed to late term abortions nearly categorically, i believe there is much room for agreement on the abortion debate.  But the GOP's long held winner takes all attitude, makes me suspect of any restrictions they seek to place on abortion.

Harpoon at the ready?  

for the sake of continued political power is a sick, sick individual.

"Let 10 million more "fetus" die over the next 10 year so we can stay in power? SURE!"

Miers' isn't one, won't become one over night, which means she'll drift to the left over time. Hell, she isn't even an O'Connor.

You just get done accusing someone of jumping to conclusions and you come out with that? Come on...

Truth is, no one does know yet.   So let's wait and see, hm?

of Roe.  If you want to ban abortion, you will need a constitutional amendment to do so.  If Roe is overruled, there will still be abortion on demand in this country.  In more states than not.  It's a waste of political energy to demand SCOTUS justices who will overrule Roe.  What you really want is a Court that will say that abortion is unconstitutional. That won't happen.  

A ground rule double is good because you're not in much danger of a double play. This is more akin to a bunt (I wouldn't go so far as to call it a bean ball).  If Bush next nominates Gonzo... [double play? Roberts stranded on third? fielder's error? too many analogies!]

Hmmmm.

"SCOTUS seats are not an entitlement for brilliant conservative law students."

Isn't that the major rationale for appointing Roberts?  That he was a brilliant law student?

I'd say this is an example of grounding into a fielder's choice.

If Bush next nominates Gonzo, he's just hit into an unassisted triple play.

He was far more than just a brilliant law student. He was a brilliant jurist period.

While an amendment would certainly be preferable, Congress could pass a law banning abortion under the Interstate Commerce Clause (women crossing state borders to get abortions is certainly interstate commerce under the present construal of that clause).

though I think that, in the Roberts Court, you will see a consistent movement back from an expansive view of "interstate commerce."

but, given the way that the clause has been interpreted before, personally, I don't see this use as all that broad.  I think that it is within the scope of what a Roberts Court would allow.

though I do fear the exuberance of many of the young conservatives (not that I'm

quite over the hill yet!) and a bit of power lust by house and senate members

may lead to a step or two back before moving forward again.  I've also been

disheartened by the level of vehemence over this (and a few other) issues the

past year - I thought it was only the Dean crowd that was rabid.  

i read  Patrick Ruffini  and Hugh Hewitt all the time. They both seem to be saying this is a good conservative choice. I believe both are very smart and would give their best assestment, not just follow party line. I am 44 and only voted once in my life, the last election. I voted for Bush, gave money, walked for Bush, manned phone banks, you get the idea.

I am pleased to hear more and more good news about  Miers as the time goes on and I am happy that Bush is in office and not Kerry.

How right am I. I drove to Crawford and DC,from St Louis MO, to the support the troops rally. No, I have a fulltime job but feel this is important.My son is in the army and you can bet your ass the American flag flies at my house.

It is not time for Republicans to eat their own. We can have that fight over immigration and the budget, but the Courts are starting to look good.

  I'm spoiling for a fight myself. But, can we win another battle without expending a lot of political capital?

  It looks to me like that's what is going to happen. I'm just going to go with what I know and that's the President has made very good personnel choices in the really important positions. The left can holler about Brownie all they want, but they did confirm him. And sheesh, there's literally hundreds of jobs for the President to fill. Everyone of them aren't going to be gold plated. But I think in his court nominees and the really important jobs, he's done an excellent job.

  We've got a good 2 1/2 years before the President really starts to lose his clout as the elections for '08 get into full swing. There's still lots of work to do.

It is not time for Republicans to eat their own.

Pro-lifers have been working for 30 years just for this moment.  In church halls, schools, city halls and legislatures.  Picketing clinics in zero degree cold and 100 degree heat, year-in and year out, just for this moment.  Standing on this prinicple even though it meant alienation from family, just for this moment.

Values voters worked their tails off to put Bush in office again in 2000, just for this moment.  

And in this moment, when Bush promised us justices in the mold of Scalia and Thomas, he captilates and rewards his personal attorney.

Bush is worse than Clinton.  Everyone knew Clinton was a backstabbing liar.  Bush told us to our faces that he'd put judges on the bench who were Scalias and Thomases.  He lied to us and ignored the cries of 30 million dead children.  He lied to us and conveniently forgot his promise to the very people who busted their tails to put him in office.  We have been betrayed.

It is not time for Republicans to eat their own.

Why isn't it?  It seems like the perfect time to me.  There certainly isn't anything to fight with the other side about.

the Courts are starting to look good

What basis do you have for thinking the Supreme Court is looking good? Besides blind faith of course...

The Court will almost certainly move to the right as a result of the nomination and confirmation of Harriet Miers. [emphasis mine]

The fact that GWB nominated a Justice (no, scratch that, 2 Justices) that everyone is waiting to see before they declare a success or another Souter, is in fact so much better than anything I had ever hoped for from Bush that I'm really shocked that anyone can claim conservatism is sitting pretty. All you have to do is compare her to Ginsburg, with regards to expectations, to see why that seems a defeat (was anyone surprised at how RBG votes? was it even remotely a question mark?)

I mean, if she turns out decidedly conservative, the only surprise should be HOW decidedly conservative, but given that my expectation was always that W's nominees would be rabidly conservative, I consider this a win for my side.

Miers will cast the votes that O'Connor wouldn't.

I don't think that should be the measure. The measure I had expected was that "Miers will cast the votes that even Scalia didn't dare cast." This is one case where low expecations didn't actually help Bush, I think.

Clarence Thomas was NOT a stealth nominee.  I certainly am not an insider but right after Marshall announced his retirement I called the Justice Department and the White House to urge President Bush to appoint Clarence Thomas.  Conservative knew he was the right man for the job -- and we were right.  

I agree that Miers is not the intellectual powerhouse or lightning rod that some of you have been waiting for, but you have to keep your eyes on your prize (to borrow a phrase) and also remember the rules of cronyism.  The basic rule of cronyism, IMO, is I'll scratch your back if you scratch mine.  Miers is now totally owned by GWB (and from what I've read, has been for some time).  If he tells her to vote to overturn Roe, or to do anything else, she will.  So even though she's not what you'd hoped for, I think you'll probably get what you want in the end.  

And this is not some rationalization to make me feel better--this is, in fact, the sober, realistic fear of a democrat.  

This is what we call "off the rails."  The funny thing is, one of the few things we do know about Miers is that she is pro-life.  Whether or not that translates into ruling against Roe is another story--as it is for anyone Bush would nominate--but it's extremely likely.

I will always remember where I was when I heard that Bush did not nominate a strong pro-lifer for the swing vote of a court that was destined to hear the partial birth abortion case.  To me this is as devastating as 9/11.

Bush responds to the killing of 3,000 Americans by Bin Laden by going after Saddam instead.

Bush responds to the killing of 30 million babies through abortion by nominating a crony with no judicial record of opposing abortion.

This is the ultimate betrayal.

Bush responds to the killing of 3,000 Americans by Bin Laden by going after Saddam instead.

Ok, now I'm thinking 'troll,' or perhaps someone with an incredibly short memory.

the former, after considering the crony comment.

There was no conservative groundswell for Thomas until he was attacked by Anita Hill and the Dems.

He was the epitome of a stealth candidate, he'd never thought about Roe before, and to suggest otherwise is disingenuous.

The real lessons are that you can get rid of the loan a lot faster working in a large corporate law firm and still have a chance to make it to the highest court in the land.

No more serving a sentence of 5 to life on an appeals court waiting for the right moment.  Both Roberts and Miers spent most of their careers worrying about billing rates, who they should be schmoozing with today, and how to impress the managing partner. Once not seen as a track to a high judgeship, it now seems like the best track.

Is this a great country or what?

Lotta hits these days.

Lotta trolls.

The one bite rule is off, to my mind, until further notice.

Bye.

Commerce is pretty much just a horse & carriage and bartering.  Unless Thomas were actively trying to figure out a way to ban abortion, and decided to use commerce as a pretext, no way he would go for it.  If regulations of violence against women and guns in school zones don't count as commerce, then I don't think abortions would either.

with Guido Calabresi?  You're not gonna find too many respectable people thinking he's not a brillian legal mind, and possibly the most qualified person for a SCOTUS seat.

-TS

"Miers is a third tier, at best, candidate who doesn't stand a chance arguing against the libs on the court."

Managing partner of a huge Texas firm, first woman leader of the Texas ABA, lead counsel for a two-term Republican president, who recieved more votes than any other president in American history.  Nah you're right, clever ol' John Paul will twist her around in knots.  

And some of us voted not for W to stop abortions, but to keep the country safe from terrorists.  

Or possibly to prevent the decaying of all moral bounds by a prevention of gay marriage.  I was a national security voter/ partial values voter, and I don't feel betrayed.

You are way off the mark here. Miers sought support from the gay community as she was campaigning for the Dallas city council. They were constituents like anyone else and she sought their support. Anyway, how does the general idea of equal rights and support for freedom of sexual choice conflict with true conservatism? As a footnote here, if you read the article fully you may have noticed this interesting line in the eighth paragraph:

"Miers also stated on the questionnaire -- and in her meeting with members of the gay group -- that she opposes abortion, a response that prompted the group to eliminate her from contention for obtaining the group's endorsement."

Having attempted a defense of Harriet Miers from the scurrilous "unqualified" charge, let me lay out what actually concerns me about her.

You unabashedly call her a conservative:

But what is known, through official and unofficial channels, paints a picture of a conservative Texas lawyer with rock-solid beliefs on life, strong religious convictions, and a modesty that should allay fears of a renegade Justice determined to remake society through the courts.

I have to say that only the last point means anything for me when we're talking about judicial nominees.  We have a divergence in meaning between a "judicial conservative" and a "political conservative".  I heartily agree that she is likely the latter.  What I don't know, and I suspect no one knows, is whether she is the former.

There is reason to hope.  She was on the vetting committee for the president; she knows how important judicial conservatism is for Bush.  She presumably agrees with the philosophy of originalism and judicial restraint.

However all of the things you cite as a positive -- her rock-solid beliefs on life, her evangelical Christian beliefs, her personal views and decades of service to her local church -- are things that should concern those of us who prioritize judicial conservatism over political conservatism in a judicial nominee.  The true originalists among us would be just as unhappy with a conservative activist judge as we are with liberal activist judges.

And you raised the one point that makes me wonder indeed.

Having been "present at the creation" in the war on terror, not cooped up in isolated Circuit Court chambers or rarefied law school classrooms, a Justice Miers would be unlikely to let Jose Padilla roam the streets, or open up the gates of Gitmo.

As it so happens, Glenn Reynolds nobody's idea of a raving leftist just posted about the Padilla case, referring to an article by Tim Lynch, again, nobody's idea of a lefty moonbat, decrying the Padilla ruling.  It seems to me that a judicial conservative might serve us better in a case like this than a political conservative, because as important as the war on terror is, we do need the judiciary to interpret the law and apply it without regard to his/her own policy preferences.  

-TS

Thomas is just one voice on the Court and it seems to me that an economic transaction like a woman paying a doctor in another state to have an abortion is much more or a matter of interstate commerce than a tenuous laws against domestic violence or guns in school zones.

Yes, I agree entirely that is the distinction that must be made.

And one of the things that's making me uncomfortable is the talk from some conservatives (not Patrick of course) that because Miers is an evangelical or personally pro-life or whatever, that she is thus qualified to be a Supreme Court Justice.

It's sort of like the Democrats' religion test in reverse.  They don't think that orthodox religionists should be able to sit on the federal courts; conversely, some conservatives seem to think those are the only folks who should sit on the courts.

Two things should matter regarding a SCOTUS nominee:

1. The intellect, experience, and gravitas of the nominee
   
2. The nominee is an originalist and/or supports judicial restraint and/or hates judicial activism.

Miers certainly fails to fulfill the first prong and only POTUS knows if she fulfills the second.  And even if she DOES fulfill the second prong of the test I've laid out above --- which she might --- it still miffs me that there were so many super-qualified appellate judges who have served on the courts for years waiting for this day and who were passed over for the president's personal lawyer.  And I'd say this about any president, including this one, who I voted for twice.

Miers just may end up being a conservative version of Ginsberg --- an ideological conservative who votes the right way but who doesn't bring a grand philosophy to the Court and whose retirement begins to be talked about in a mere dozen years.  Still, considering the votes were there for Luttig, Alito, or Sykes, all of whom would have been tremendous Justices for a generation, I really believe this was the wrong decision by the president.  It just was.  And if Thune, Allen, etc, vote against her, I won't blame them.

Having attempted a defense of Harriet Miers from the scurrilous "unqualified" charge...

Well, in some games, they give you credit "just for trying, if not really succeeding"...  ;p

Roe, Thomas had given numerous speeches that were very much in tune with a hard right position.  If you look back at the record, his conservative credentials at the time were pretty clear.

So I take it you had no problem Rauch?

What about free abortions?  

Miers certainly fails to fulfill the first prong and only POTUS knows if she fulfills the second.  And even if she DOES fulfill the second prong of the test I've laid out above --- which she might --- it still miffs me that there were so many super-qualified appellate judges who have served on the courts for years waiting for this day and who were passed over for the president's personal lawyer.  And I'd say this about any president, including this one, who I voted for twice.

Thank you, Dave!

At least someone (well, you're not the only one I guess, just the most recent) has reiterated my point.

Exactly right - when you compare Miers to all the other potential choices, she inevitably comes off as a "hack" appointment (even if we assume she's "right on the issues", and I'm not even assuming that yet...).

And, the worst part about it all - this pick was totally unnecessary. Any of Erick's "Final Four(Five, Six, etc.)" would have been confirmable.

Bottom line - this just makes Bush look bad.

And that makes the whole GOP look bad...

that some Conservatives walk the walk and aren't simply using "originalist/consrtuctionist" as code for "against Roe"

Obviously most abortions are morally wrong, but I think many people are as anti-Roe as they are pro-life.  Roe should be overturned because it was a bad decision, without Constitutional justification.  What makes it so frustrating for many is how the Courts have hijacked the issue from the proper democratic process.  I think some of the most pro-life individuals could accept legalization of abortion more if it were decided in a proper and legitimate manner.  Having no say just makes it all the more infuriating.  

I doubt that most states would adopt abortion-on-demand laws, where the procedure is widely available at any point in the pregnancy.  You'd have the Northeast, parts of the Midwest, and the West Coast.  In most other states its reasonable to expect that at least some meaningful restrictions would be implemented.  

And its not really unreasonable to demand a nominee who would overturn Roe, because most judges follow a general philosophy or tendency.  A pro-Roe judge is much more likely to be a judge who would, for example, vote to impose gay marriage/civil unions, or vote to bar a nativity scene outside of city hall, or say that the Second Amendment protects a worthless collective right, or say that private property can be taken for dubious public use claims, etc etc etc.  Look at O'Connor and Kennedy -- there was a time when we could hope that though they are pro-Roe, that at least they won't make similar activist decisions about other subjects, but then came Lawrence vs Texas where they joined the liberal 4 in creating a new right to sodomy, less than 20 yrs after another Sup Court said that states are free to legislate against it (so much for respecting precedent).  

Now maybe there are pro-Roe (by that I mean judges who would vote to uphold it, for whatever reason) judges who would respect bad precedent on that matter, but who would refrain from blazing similar absurd paths and instead render good jurisprudence on other matters.  It seems a common prediction that John Roberts will fit this mold.  I'll believe it when I see it.  Until then, I stand by the belief that a judge who votes to uphold Roe will also vote to create other new rights out of thin air, and side with the Left in the Culture War.

...then the betrayal occurred earlier: when Bush backed Specter's re-election in the face of a real conservative challenger, and when Bush backed Specter's seat as Chairman of the judiciary.

If the reason Bush "can't" appoint a Scalia/Thomas-style originalist is because of Specter, then that's a problem of Bush's own making.  And he WAS warned about it, at the time.

For my part, W has used up ALL of his "just trust me" chits.  The reason so many people are sick to death of these stealth candidates is because we do NOT trust his judgment any longer.  He could "see Putin's soul"?  The Minutemen are "vigilantes"?  CFR is unconstitution, but I'll sign it anyway because SCOTUS will strike it down?  When a man with THAT track record says "trust me -- she's an originalist" I think of Pappy Bush, and John Sununu, telling us that Souter was a "home run" for conservatives.

The problem with accepting pro-Roe judges is that such a judge is likely to be liberal on other social issues.  Even if a state by state solution played out as you predict (i.e. being bad for the GOP), then it must be weighed against appointing judges who would vote to create all sorts of new rights (gay marriage is next) w/o Constitutional justification.  Eventually the base will get the message that the GOP is using them, and then they will retaliate by staying home.  

Excellent Diary, Patrick.  Good to see arguments like this being made.  Keep up the good work.

All we know for sure about Miers is that she is very close to the President.  We know that he knows her.  This is not like Souter.  GHW didn't know Souter well.  The possibility that GW is being bamboozled is minimal.  Bush has chosen someone whose judicial philosophy he knows and likes.  Miers is too close to Bush to be anything else than what he wants in a Justice.

The issue, therefore, is not about Miers' judicial philosophy, but Bush's.  Is Bush really dedicated to a conservative Supreme Court?

If we trust that he is, we should accept and defend his nominee to the end.  

If we are unsure about this, we can be understandably disappointed in this pick, but we should not feel surprised or betrayed.  

Either way, if ever there was an appointment close to Bush's heart, this is it.      

So what? Being the first woman anything doesn't qualify anyone for the Supreme Court. That is a nice personal story, but what does it have to do with interpreting the constitution? Nothing. And just one year as WH counsel so far. If she wasn't close to the president, she wouldn't have even been considered. On the other hand, any GOP president would have to consider Luttig or Jones or Garza. Miers's resume, while nice, doesn't qualify her for SCOTUS.

1970--Graduated from Southern Methodist University Law School

1970-1972--Clerked for U.S. District Court Judge Joe Estes

1972-2001--Joined Texas law firm, Locke, Purnell

1985--Elected president of the Dallas Bar Association

1986-1989--Member of the State Bar board of directors

1989-1991--Elected and served one term on the Dallas City Council

1992--Elected president of the Texas State Bar

1993-1994--Worked as counsel for Bush's gubernatorial campaign

1995-2000--Appointed chairwoman of Texas Lottery Commission by Gov. George Bush

1996--Became president of Locke, Purnell, and the first woman to lead a major Texas law firm

1998--Presided over the merger of Locke, Purnell with another big Texas firm, Liddell, Sapp, Zivley, Hill & LaBoon, and became co-managing partner of the resulting megafirm, Locke Liddell & Sapp

2000--Represented Bush and Cheney in a lawsuit stemming from their dual residency in Texas while running in the Presidential primary

2001--Selected as staff secretary for President Bush

2003--Promoted to Deputy Chief of Staff for Policy

2004--Selected as White House Counsel

At the risk of sounding like I'm "messing with Texas," it seems to me that the first woman to get elected chair of the Texas State Bar and the first woman to lead a major Texas law firm probably had to be twice as good as most of the men who held those positions just to break through the glass ceiling.

Which suggests to me that she's a fighter and knows how to get what she's after which is the sort of person I'd want in my corner on a fight.

If Miers is such a conservative, why wasn't she a Republican in the 1980s when Ronald Reagan was in power?

Why was Miers part of a committe letter that went to the American Bar Association House of Delegates in support of an International Criminal Court and gay adoption if she is such a great conservative?

Given that Miers donated to Lloyd Bentsen in 1987, isn't it likely that had the Dukakis-Bentsen ticket triumphed in 1988 Harriet Miers would have applied to work in a Democrat White House Counsel office and had an entirely different ideological career path? If so, how principled a conservative does that make her?

What was the Miers recommendation to Bush when it comes to the University of Michigan affirmative actions cases that the administration caved in on?

Please remember, Bush has done this to us before, it just didn't matter as much. His media coordinator in the last two elections was Mark Mackinnon, who calls himself a former Democrat but nevertheless supported the Democrat for U.S. Senate in Texas over John Cornyn. And it was an aide to Mackinnon who as a registered Democrat provided the Gore campaign with videotape of Bush debate preparations. When it comes to his Texas buddies, Bush could care less about party, philosophy, or principle.

In fact, I am convinced Bush could care less about the U.S. Supreme Court now that he has lowered the standard for nomination to that of ambassadors and is handing them out to his friends from Texas.

By the way, as they say on the playground, Alberto Gonzales has got next.

That is all we get today from Bush apologists - you have to trust the President. It didn't work with Warren, Blackmun, Stevens, O'Connor, Kennedy, and Souter. Sorry is not good enough when these Republican presidents are wrong. And certainly there can be no trust when he nominates a crony over much more qualified candidates.

The era of trust for SCOTUS nominees is over. They should and must have bona fide track records of interpreting the Constitution as strict constructionists before gaining our support.

Bush trusted his media advisor, former (if not current) Democrat Mark Mackinnon, and Mackinnon's Democrat aide provided the Al Gore campaign with videotape of Bush debate preparation. This is the problem - Bush has proved he has blind spots ideologically when it comes to his friends.

I'm not saying you should trust Bush.  I'm just saying that this nominee is so close to him that if you do trust him, you should have no concerns about Miers.  And if you don't, you shouldn't be surprised or feel betrayed anyway.  

I totally agree with this post.  Conservatives need to take the long view -- this is what liberals have done for 50 years.  Let's be persistent in the direction we are going, but patient in how long it takes to get there.

I'm reminded of what someone said a decade ago (I think it was Newt Gingrich) (and I'm paraphrasing), "We will be willing to compromise in the speed and manner of change, but not in the direction of change."

I slept on it and I am fully on board; see the 'Chillin'' thread on ConfirmThem which discusses your piece.

Most of what you have written as GW giving up the fight is Congressional Republicans not willing to play ball.  If Bush could push any agenda, I'm sure he'd push everything you said, but you have to placate to the Senate unfortunately.

all good points.

Re: A marriage amendment is tough, and he gave it up, even going the other way by coming out for civil unions before the election.

I have not noticed that President Bush had given up his support for a marriage amendment, even though, for federalism's sake, I think he should. But the President after all has no real role in the amendment process. Nor does support for civil unions mean that his support for the marriage amendment is somehow illogical let alone hypocritical.

These are valid questions, and I am in no way convinced of her conservative credentials at this point. I'm just pointing out how ludicrous it is to use the point that she met with a gay rights group as a means of questioning her conservatism. Your points hit the mark much more effectively.

Re: Would a conservative meet with gay rights activist in 1989 and express 'general support for equal rights for gays and indicate she opposed discrimination based on sexual orientation.'?

I hope that supporting equal rights for all Americans and opposing discrmination is not solely a liberal position.

The Left has been advancing their agenda via judges who enacted their personal policy preferences for years.  The genie is out of the bottle - why not get into the game.  It'll be a lot more interesting if two sides were involved as opposed ot just one.

would know the true dangers of elitism. :-D

I'm happy to keep fighting THAT particular attack.

-TS

with a broken judiciary that has arrogated to itself powers that are (1) not contemplated in the Constitution, and (2) bad for democracy.

I don't want to be ruled by solons of either side, even if I agree with the policies they might advance.

-TS

When it comes to evaluating the power of the Executive versus the American people (or the States), I want a jurist with an exceptional knowledge of the Constitutional issues at hand; one who has studied the founders' writings, knows the relevant history, etc.; not one whose knowledge begins with the Padilla case and then only as an advocate for the Executive.

SCOTUS is about so much more than any one issue(yes, even abortion)and certainly more than any one case, such as Padilla.  That is why it was so important to have a real originalist Consitutional scholar come on board.  For the issues that haven't yet arisen, the cases which we can't yet even conceive of.

One of the things that makes our system of government work is legitimacy.  It is necessary that even the loser in the election perceive that the election process was fair.  Likewise, the public needs to perceive that SCOTUS decisions are well grounded in Constitutional law; even if they don't necessarily agree with them.  That wasn't the case with Roe and Roe's had not only its own disastrous consequences but it's illegitimacy has also distorted our political landscape ever since.  

I don't want Roe overturned if we are just going to get a bunch other unjustifiable non-originalist decisions in other areas - not when we could have had Roe overturned and had an originalist making decisions on all these other Constitutional questions.  

I simply can't believe that in this entire country Bush couldn't a single well respected principled conservative jurist who's proved his or her intellectual chops on ConLaw issues who could be confirmed. It just defies the imagination.

And I think it is a real kick in the teeth to the constitutional scholars and judges out there who have been doing the yeoman's work of thinking, writing, speaking and generally advancing conservative principles of Constitutional law.

Hmmmm.

"He was far more than just a brilliant law student. He was a brilliant jurist period. "

Well that's certainly an accomplishment since he was a judge for less than two years.

That you're probably right.

And the SCOTUS should not be about who can get more of their friends on the court to vote the way they tell them or "own" them or anything else.

I feel like we're all in junior high again, and this is the student council elections or something. The blatant cronyism is embarrassing. [And I say this feeling like I dodged a bullet by it not being Luttig!]

I didn't want John Roberts, but I couldn't argue the fact that he was clearly very, very smart and   painfully qualified for the job. Harriet, on the other hand, just seemed to luck into sitting at the popular kids table.

Awesome! At least that makes today seem a bit brighter!

I have to admit that I was seriously ticked off yesterday morning. Not because I'm worried that she will be another Souter, but because this seemed like a pick made out of fear.

But with all of the people that are endorsing her- Dobson, ACLJ, Hewitt, etc... I've come around. Especially Dobson convinced me. The Evangelicals wouldn't keep their mouth shut on this if they thought they had been lied to.

I'll trust Dubya on this one, because he has earned my trust on judges.

I'm not sure it will ever be possible to get him back in there.

You miss the point.  Within this context, what we have had to deal with is a litmus test on religion from the left.  IE "Judge Roberts is a Catholic... he will attempt to impose his religious views on the bench - therefore he must be opposed."  What we are saying here is that Miers is an evangelical, perhaps she will not be hostile to our views, like those whose religion seems to be secular fundamentalism.  There is no religious litmus test here.  Bush could have appointed an Evanglical, a Catholic, a Mormon, an athiest in as much as their phylosophical outlook on our country is one of respect for the original intent of our Constitution.  

If we of the right have a single litmus test for a candidate it is only that they agree to faithfully read the constitution within the context of its original meaning rather than scoping out the tea leaves to see how to fit the latest social fad into the fabric of the constitution.

All the people on this site who are like "gee, I'm not sure if Miers is an originalist, but it looks like she'll vote our way" are making my point for me.

If the only litmus test was whether she holds an originalist judicial philosophy, why would her religion matter to anyone?  Answer: It wouldn't.

on a promise to put that genie back in the bottle.  Once you cede that moral high ground, all you can campaign on is the promise to bring about certain results, and you have to hope the public agrees with those results.

It's silly that we are even having the discussion, because there are so many qualified originalists the President could have appointed.

would still affect interstate commerce.  Transportaton costs, lodging, meals, etc.

My point is, i think she may turn out to be more of a moderate than a fire breather like Scalia.  And from my perspective, that's not such a bad thing.

Look, abortion will eventually go out of style as contraception and the means of preventing pregnancy continue to improve, gay will have full marriage rights and affirmative action will run its course.

The world won't end.  

"As our picture of Miers comes into clearer focus, the Souter II narrative begins to strain credulity. It requires us to believe that the President who gave us Janice Rogers Brown, Michael McConnell, Bill Pryor, Priscilla Owen - and no RINO that I could name at the Circuit or District Court level, who fought the fight on Miguel Estrada, and who had originally orchestrated the masterful trade of Roberts-for-O'Connor, would suddenly punt at this critical moment. It also requires us to believe that Miers, who has worked with Bush for a decade, who is the White House staffer most intimitately involved with vetting nominees' judicial philosophies, and is one of the people Bush knows best, has been able to hide her true beliefs from her boss until - Ah, ha! - she donned the judge's robe. I'm sorry, but I don't think this is the same thing as an unknown from New Hampshire handpicked by Warren Rudman."

read it all

ju·rist - n.

    One who has thorough knowledge and experience of law, especially an eminent judge, lawyer, or legal scholar. Also called jurisprudent.

Taken from American Heritage Dictionary

. . .why wasn't he a Republican back in the 1940's and 50's, when Thomas Dewey and Ike could have used his support?  People's political views change over time--and Miers have apparently gotten more conservative over time, not less.  That would seem to be in the right direction from the POV of a Republican looking at her prospects on the Court.

Thank you for clarifying so I didn't have to.

has a great point here, Patrick. President Bush shouldn't compromise judges' qualifications simply because he wants to avoid a "fight". As much as my side would abhor a Thomas or Scalia-type justice at this moment (or any moment for that matter), the nomination of such a candidate would send us (the Dems) a strong message from the president. It isn't fair for prospective judicial conservatives to "hide" their ideology, fearing fierce opposition from the left, while left-of-center ones offer no apologies. In essence, there are two key points here:

1.Qualified candidates for SCOTUS, regardless of their ideology, shouldn't be passed-over simply because the president feels their ideology may instigate a "fight".

2.It isn't fair that conservative judges should feel they should hide their ideology fearing they will never be promoted to the level of SCOTUS, while liberal judges seem to be free of that problem.

As a liberal, I'm concerned about Miers and how her crony nomination may be hindering the promotion of a more-qualified person. Furthermore, I just barely realized that conservative judges are in a tough spot compared to liberals (I won't discuss the reasons here for the sake of keeping this diary on message).

The reason I agree with Leon is because I never expected President Bush to pick such a person. Why doesn't he give the right what they want? Heck, Clinton gave us Ginsburg. Why can't your guy do the same for you? I feel for you Leon. I share your frustration.

12-2 at this moment! Score one for the underdogs!

To think that Roberts or Miers would be anything like a pick from Kerry or Gore ...even in the WORST case these guys will be O'Connor or Kennedy ... not Ginsburg or Breyer.

good post.

From what cases involving national security would Miers have to recuse herself?  If she was there at the "creation" of the war on terror, conceiveably War on Terror cases that come before the Court would deal with laws she helped draft or policies developed with her legal expertise.  The Administration would probably (right?) be a party in these case.

What's the rule on recusal here?  If she must recuse herself from those cases, that undermines what I think is a key point Patrick makes?

{agree with comments that this is a wonderful diary)

But recusals are discretionary and a matter of honor usually unless a litigant is of a personal or business association.

I do not favor recusals usually. Judges are to apply the law as they see it and take an oath. That she wrote a law that she thought was correct should not be grounds for recusal.

But there is another school of thought.

I was upset when scalia recused on a religious case due to recent speech.