Time Is Running Out
Bill Kristol’s current Weekly Standard op-ed says:
Bush has made this unfortunate nomination. What is to be done? The best alternative would be for Miers to withdraw. Is such an idea out of the question? It should not be. She has not aspired all of her life or even until very recently to serve on the Supreme Court. And her nomination has hurt the president whom she came to Washington to serve. Would a withdrawal be an embarrassment to the president? Sure. But the embarrassment would fade. Linda Chavez at the beginning of the first term, and Bernard Kerik at the beginning of the second, withdrew their nominations for cabinet positions and there was no lasting effect. In this case, Miers could continue to serve the president as White House counsel. The president’s aides would explain that he miscalculated out of loyalty and admiration for her personal qualities. And he could quickly nominate a serious, conservative, and well-qualified candidate for the court vacancy.
(My emphasis.)
This is the reason that I am leaning so heavily towards taking an affirmative stance against the Miers nomination. If this nomination is to be stopped, it should be stopped before it ever gets to Judiciary Committee hearings. A withdrawal would be far less embarrassing and damaging than a defeat in the Judiciary Committee, or (less likely) on the Senate floor.
I am still waiting to hear something encouraging that could cause me to change my mind. But each day brings only distressing revelations, and the defense of her has been exceptionally weak. I continue to find myself drawn closer and closer towards active opposition.
And time is running out.
I do not understand why so much negativity, wait for the hearings, then listen, learn, and the decide.
stackja (defa31) — 10/9/2005 @ 3:28 amI just now got through explaining why I think that might be a bad idea — up in the post.
Patterico (4e4b70) — 10/9/2005 @ 3:40 amI don’t see her withdrawing before the start of the hearings…. Bush is not a “oops, my bad” guy and she’s not going to pull her name while Bush is supporting her.
If it is going to happen, it will take place during the hearings… the GOP needs to pull a ‘Schumer’ and go after her in hopes that she’ll say something so bad that withdrawal is the best option.
Unfortunately, the GOP does not have anybody on the Judiciary Committee with the talent of a Schumer (I dislike his politics, but give him credit for being good at what he does). The GOP has nobody with the tenacity (and the ability to do his homework) necessary to set her up for failure.
While Schumer doesn’t care if some see him as mean, the same can’t be said about those on the GOP side of the aisle. The GOP has never been able to do what is necessary – and in this case it’s going to be necessary to go hard after a woman… not something for the faint of heart.
And, even if some were tempted to go after her, they’d wilt in the face of the withering assault they would face from the Democrats and the MSM, who would love to have another opportunity to depict the GOP as unfriendly to women.
The end result is she’ll still face harder questions from those on the left than from the right…. and she’ll be confirmed.
steve sturm (d3e296) — 10/9/2005 @ 4:39 amMusings of a retired ne’er do well from a trailer park in deepest, darkest Florida:
Do we need a Constitutional scholar? Seems to me I remember the phrase “rule of law, not men” from 3rd grade. If the law has grown so complex that even one of the top 100 lawyers in the country is not qualified to interpret it without years of study then our whole society and way of life is in danger. We don’t need more nuance. We don’t need more insights. We need decisions that make sense to those of us who have to live with them. You get that from people who live by the rules, not from the people who make them. Harriet Miers has spent a lot of time wading through the rules.
The President is not qualified to pick a nominee? This from a pompous ass who’s only elected office was secretary of the junior class at Podunk High?
The 2000 election was the blandest, least political in memory. There was peace and prosperity. Neither candidate could get a bit part in a movie. The biggest issue was the lockbox. The even split showed the basic party affiliation of the country.
In November 2004 almost 20 million more people voted than in 2000. This vote went to the President 3 to 2. This was a resounding vote of confidence in George Bush. The people overwhelmingly chose him to lead us in time of peril. Do you really think we said “handle the war Mr. President, but maybe you should outsource some of that other stuff”?
This President was not elected by the chattering class. The fine intellectual arguments of the conservatives did not get the people to the polls. George Bush got the people to the polls. The superb performance of the Republican Party politcal operations got the people to the polls. People like me, informed by life and our parents’ lives, talked to our family, friends, neighbors and a whole bunch of other people and got them to the polls.
Hands off our President you nattering nabobs of negativity!
Regards,
Roy Lofquist (d2fd06) — 10/9/2005 @ 4:52 amRoy
As our honorable host quoted Mr. Kristol:
I don’t know about anyone else, but I see this as a good thing!
Dana R. Pico (a9eb8b) — 10/9/2005 @ 4:57 amBush has proven to be a stubborn man. So if Miers bows out, I doubt seriously it will be because he persuaded her to withdraw. This is one instance where his obstinacy is a drawback even for republicans (or at least some republicans).
Too many republicans mistake stubbornness for strength of resolve. But being hard-headed is not synonymous with moral conviction – sometimes it is just being hard-headed.
Tillman (1cf529) — 10/9/2005 @ 7:27 amGOP Judiciary committee members don’t go hard after anyone. They just vote against a nominee they think should not be confirmed. This is as it should be. The Dems think it is necessary to justify a negative vote by making the nominee seem evil or totally unqualified.
One of the reasons ordinary people voted for George Bush is that he is his own man. He does not make decisions on the basis of polls. He is certain the Miers will be a justice who will not legislate from the bench and will treat litigants fairly.
Stu707 (7c4f65) — 10/9/2005 @ 9:23 amHe is certain she is a woman who would please Democrats. See my latest post, about who his second choice was.
Patterico (4e4b70) — 10/9/2005 @ 9:26 amStu707 wrote:
One of the reasons ordinary people voted for George Bush is that he is his own man. He does not make decisions on the basis of polls. He is certain the Miers will be a justice who will not legislate from the bench and will treat litigants fairly.
Well, it’s apparent that President Bush didn’t poll Patterico readers!
You know, most conservatives have said that they don’t want philosopher kings sitting on the Supreme Court, don’t want judges who legislate from the bench. But I don’t believe that is what they want at all: a lot of conservatives do want someone who will legislate from the bench. Like it or not, Roe v. Wade is a settled legal precedent, and a jurist who does not legislate from the bench will have to vote in affirmation of Roe. The same holds true with the abysmal decision in Kelo. The University of Michigan Affirmative Action cases were decided in accordance with both the precedent from Bakke and written state and federal law. Even the Newdow cases (over the Pledge of Allegience) are not exactly strained readings of existing law and cases; to overturn the Ninth Circuit’s precedent would push the bounds of from the bench legislation.
I’d be much more inclined to say that conservatives do want the Justices legislating from the bench, just as the liberals do; the conservatives simply want the decisions to go differently than they have.
Dana R. Pico (ba0b64) — 10/9/2005 @ 9:48 amDana, if I steal your car and you come to my house, get in the car, use your keys and take the car home, have you just stolen the car from me?
That’s ridiculuous. And it is equally ridiculous to say that when one court rules in a way contrary to law, that another court cannot correct the ruling without also doing something illegitimate.
You are engaging in a common, but despicable tactic of changing the meaning of a word while trying to keep the connotations.
George Bush is called a Nazi because he thinks courts ought to be able to subpoena library records. Of course, everyone hates the Nazis, but not because they thought courts should be able to subpoena library records.
America is called an empire because we have a lot of influence in the world. Of course, everyone hates empires, but not because they have influence.
Now Democrats are doing the same thing with the phrases “activist judge” and “legislating from the bench”. Over decades, conservatives have managed to convince a majorty of Americans that the courts do not have the proper authority to substitute their own policy preferences for the clear meaning of the Constitution. That’s what “legislating from the bench” means. Now you are using the phrase to mean something like, “changing the way things are done”. No one opposes legislating from the bench on the grounds that it changes the way things are done.
You should be ashamed of yourself for such a dishonest argument.
Doc Rampage (b7bb1a) — 10/9/2005 @ 10:38 amDana, that really is a silly argument. Conservatives simply want to correct the liberal excesses of the past few years.
Patterico (4e4b70) — 10/9/2005 @ 10:41 amI believe that what Dana is saying is that the Supreme Court should not simply be a weather vane for whatever political opinions are prevailing at the time. Contrary to what a lot of judicial activists on both sides of the aisle seem to think, precedent matters.
Tom (eb6b88) — 10/9/2005 @ 10:58 amSo does the Constitution. In my opinion, more than precedent.
Patterico (4e4b70) — 10/9/2005 @ 11:07 amPan Pan:
The nomination of Harriet Miers is obviously bonehead stupid any way you look at it. Sure, she’s qualified to advise President Bush, and she’s qualified for nomination to entry level judicial posts, but qualified for SCOTUS, not in this lifetime.
President Bush wanted a woman nominee, so he picked a reliable female crony. That isn’t good enough. Conservatives are rightly outraged, and no happy talk is going to silence the criticism. If fact, the debate will only serve to bring other, heretofore submerged, issues out into the open.
Conservatives are conservatives first, and supporters of the Republican Party by default. Apparently too many in the GOP have lost sight of that fact, and the consequences which attend insulting and abusing us. Our votes can’t be taken for granted, but that’s what’s happening here. Well, we’ll see about that come election day. The GOP can’t win anything without us, and we may have to prove it.
Our President is steaming full speed into dangerous waters. Someone close to him should get his attention in focus. The Ship of State has sailed into a minefield, and only a quick change in course can prevent untold damage. Otherwise it’s SOS….
Black Jack (ee9fe2) — 10/9/2005 @ 11:10 amDoc said:
Dana, if I steal your car and you come to my house, get in the car, use your keys and take the car home, have you just stolen the car from me?
That’s ridiculuous. And it is equally ridiculous to say that when one court rules in a way contrary to law, that another court cannot correct the ruling without also doing something illegitimate.
Sorry, but it doesn’t work that way. Plessy v Ferguson was perfectly legitimate . . . until it was undone by Brown v Board of Education. Much more recently, Bowers v Hardwick was perfectly legitimate, until reversed by Lawrence v Texas, less than twenty years later.
You might wish to call either Brown or Lawrence legislating from the bench, but the fact that both reversed previous Court precedents tells us that either position in those two cases could be called the illegitimate one.
Which was contrary to law: Bowers or Lawrence? Obviously, one of them has to be (unless you want to throw in Earl Warren’s “evolving standards of decency” position into the mix, in which case both decisions are legitimate, depending on when the question is asked), but, under American law, the last one is the legitimate one, period.
Patterico added:
Dana, that really is a silly argument. Conservatives simply want to correct the liberal excesses of the past few years.
Whether we regard them as liberal excesses or not (and I agree with you, they are in many cases), they are still the law, and to argue for judges who will overturn existing law, when that is the job of legislatures, is asking for judicial activism just as surely as when our liberal friends try to do the same thing.
I am asking that conservatives be honest about what they wish to do. Thus far, I don’t think that most of us have been.
Dana R. Pico (ba0b64) — 10/9/2005 @ 12:31 pmConservatives are conservatives first, and supporters of the Republican Party by default.
As a liberal who has to trust (by default) elected Democrats to represent and advance my views, I feel your pain.
Tom (eb6b88) — 10/9/2005 @ 12:58 pmThank you for the kind observation Tom. So few of my brethren seem to grasp that point. Perhaps you Lefty’s aren’t such low down, belly crawling, yellow dogs after all.
Black Jack (ee9fe2) — 10/9/2005 @ 1:25 pmPatterico said:
I am not going to trash Novak nor am I going to take his word for who Bush’s second choice was. I don’t know who that might have been and I doubt Novak does. That the President takes into consideration possible reaction of the oppositin party to potential nominees is a given.
Stu707 (7c4f65) — 10/9/2005 @ 2:06 pmWhy Stealth?
There are three reasons given for George Bush’s choice of Harriet Miers: She is a long-term associate of his, and he knows how she thinks.She is a born-again Christian, and Bush wants this group represented on the Court.There is no…
The Interocitor (ca7e8c) — 10/9/2005 @ 3:18 pmDana, the mere act of reversing a precedent does not constitute judicial activism. To the extent there is a right or wrong interpretation of the 14th Amendment, either Plessy or Brown was incorrectly decided, but not both. Ditto for Bowers and Lawrence. Most conservatives (myself included) do consider the latter to be an example of judicial activism, but only because the Constitution itself does not bear that decision out – not because it conflicts with an earlier pronouncement by the same court.
I will grant you one example of right wing judicial activism, however: affirmative action. As a matter of policy, I hate it as much as the next guy, but I’d be lying if I said I thought the 14th Amendment prohibits it.
Xrlq (428dfd) — 10/9/2005 @ 9:33 pmYou don’t think the 14th Amendment prevents racial preferences by public institutions? Or are you saying something different from that?
Patterico (4e4b70) — 10/9/2005 @ 11:05 pmActually, yes, I do believe that, more or less. I think the Fourteenth Amendment was intended by its drafters to prohibit invidious discrimination of the Jim Crow variety, not to hand out a constitutional claim to every individual who feels (justifiably or unjustifiably) that he’s been shortchanged in any way. It’s common on the right, but facile IMO, to argue simply that racial discrimination is racial discrimination is racial discrimination, without taking into account what the allegedly discriminatory policy does, what it is intended to do, and why. Moral equivalence arguments aside, Klan-like discrimination against a traditionally oppressed race for purposes of preventing its integration into greater society is one thing, and do-gooder discrimination that just tries too hard to integrate them is another. The former is precisely what the Fourteenth Amendment was intended to prevent; the latter, irrelevant to it, or if relevant, only in terms of going above and beyond the call of duty. It may be doing so in a stupid way, or one likely to backfire, or one that can be rightly criticized on numerous other policy grounds, but it’s nothing comparable to what prompted Congress to enact Amendments 13-15. Indeed, the prospect that the former slaves states might enact diversity quotas to reconstruct themselves too quickly was the least of anybody’s worries.
So yes, I do think the liberals have the better argument on the narrow issue of whether the Fourteenth Amendment permits affirmative action. Of course, many of them quickly blow that advantage by arguing, even less plausibly, that the Fourteenth Amendment requires what it (barely) permits, or by taking the “dammit, this ain’t fair, so I’m calling it unconstitutional” in other unpredictable directions (e.g., “discovering” a right to gay marriage under the 14th Amendment or a substantially identical state constitutional provision). But if we’re going to chide the liberals for constitutionalizing their every political preference, we’d best be careful not to engage in the same ourselves, which I think we do by arguing that affirmative action is unconstitutional, as opposed to being just one more bad government policy.
Last but not least, the one position on affirmative action that I think has no support whatsoever is the one advanced by Louis Powell in Bakke, and by Sandra Day O’Connor in the Gratz and Grutter cases. My argument is that affirmative action should not get strict scrutiny. Theirs appears to be that the court should claim to impose strict scrutiny, but then water down “compelling interest” to the point where it becomes almost meaningless. Diversity can be a legitimate state goal IMO, but it’s not a “compelling” one by any stretch of the imagination.
Xrlq (428dfd) — 10/10/2005 @ 12:40 am