Patterico's Pontifications

10/9/2005

Article Blames Miers Nomination on Filibuster Threats

Filed under: Judiciary — Patterico @ 1:35 pm



Via feddie at Confirm Them comes this Chicago Tribune story, which says:

The failure of the Republican leadership in the Senate and the White House to swiftly end the Democratic-led filibusters came back to haunt conservatives last week, because it was one of a confluence of factors that led to the surprisingly contentious nomination of White House Counsel Harriet Miers to the Supreme Court.

Partly because of the Democrats’ success in filibustering appellate court nominees, Bush had a shorter list of candidates to examine for the Supreme Court.

. . . .

Bush had emphasized to his aides, however, that he wanted to nominate a woman or minority. Federal appellate Judge Priscilla Owen had been under serious consideration and, an administration official said, was willing to endure another fight, after surviving a Democrat-led filibuster of her nomination to the New Orleans-based federal appeals court. She did not withdraw her name from consideration, the official said.

But Senate Minority Leader Harry Reid (D-Nev.) and other Senate Democrats had warned Bush that the nomination of the strongly conservative Owen would provoke an all-out fight and likely trigger a filibuster.

So with his approval rating dropping after the government’s response to Hurricane Katrina, Bush turned to Miers, his trusted adviser.

We don’t know if this account is true, any more than we know that Bush might have appointed Consuelo Callahan. But the story is consistent with an increasing body of evidence suggesting that Bush’s primary objectives were: 1) a diversity candidate, and 2) avoiding a contentious fight — not simply picking the best person for the job.

Trust Bush, indeed.

P.S. Steve Bainbridge, are you finally willing to admit you were wrong about judicial filibusters? If you expect Bush to admit he was wrong, you should set an example.

17 Responses to “Article Blames Miers Nomination on Filibuster Threats”

  1. This is, in my opinion, what Rush Limbaugh meant by President Bush having to make this nomination from a position of weakness.

    Charles D. Quarles (5d11c1)

  2. Bush didn’t have the guts to nominate Owens, leaving him in a position to nominate only one other person in the United States: his personal attorney. And this, of course, is the fault of the Democrats, a spectacular move of political trianulation crafted by the Clinton family. (Did I say family? I surely meant to say brothel…)

    The Bush Admin simply expected the base to trust the process by which he makes decisions. It’s worked for five years now, and there’s no reason not to trust him now. Miers comes from “good folk” and possesses a “good heart”. That’s been enough for his previous appointments, and it will work here.

    Tuna (617cb5)

  3. The primary problem with Miers is that she is unqualified, not that she is insufficiently conservative, and I don’t see how the Gang of 14 can be blamed for that. There is no political constituency demanding an intellectual lightweight on the Court. Even if Bush was forced by the filibuster compromise to nominate a moderate, he still could have done better than Miers. Political necessity is not a viable excuse for Bush’s choice.

    FXKLM (b3cb35)

  4. I’m inclined to agree with both Patterico and commenter #3 (FXKLM). The White House’s priorities seem to have been (i) to choose a woman (eliminating Luttig, McConnell and Alito), (ii) who would not be seen as “controversial,” and would therefore avoid a filibuster. Possibly Arlen Specter gave the WH advice — solicited or not — that Edith Jones, Priscilla Owen and Janice Rogers Brown would all face unyielding opposition, not only from Senate Democrats but perhaps also from pro-choice Republicans.

    But the President had other conservative women available as nominees, two of whom should have been easily confirmable: Alice Batchelder of the Sixth Circuit (from Ohio; Senators DeWine and Voinovich could have been expected to support her enthusiastically, and at 61, she’s about Miers’ age); and Karen Williams of the Fourth Circuit (from South Carolina, appointed by Bush I at Strom Thurmond’s behest, yet still only 54; Lindsay Graham would have shepherded her through, and John McCain would have joined in, looking to the SC primary in 2008).

    It’s one thing to concede that the WH had its very best options (Luttig, McConnell, Jones, Alito) foreclosed by strictly political considerations. It’s another to believe the party line that Miers is the best candidate for this vacancy.

    Gary (39ae96)

  5. I’m curious: why is the need/desire to avoid a political fight that one might well lose such a bad thing? One of the prime attributes of a good politican is knowing which fights to pick and which to pass on.

    Picking a justice is intensely political. Bush has to know how far he can push. Given his read of the situation (thanks Sen. McCain), Miers may have been the best of 1) a justice who shares his views and 2) a justice who could be confirmed. A failed pick would harm Bush more than a pick that angers parts of his base (this assumes that he can make it up to the base somehow). A successful pick stops the slide and the bleeding, and allows him to get on to other important things.

    I don’t know yet what to think of Miers as a potential justice. But it does seem that a lot of criticism from the base comes from those who were spoiling for a fight with the Dems. Sure, fine, that’s your agenda, but Bush may well have decided that a knock-down fight was the last thing he needed now.

    Steve White (3ef474)

  6. There are one fundamentally two good reasons to have a fight.

    One, the lingine-spined Senate filled with RINO’s deserves it; and two, ther is no more essential difference between the Democratic left and the Republican right than the role of the Court in American political life: the former see it as a super-legislature and agent of social change – the latter, anything but!

    A just desert and these mutual exclusives demand a hearing – not the whimper Miers’ nomination provide. It would be educational for the people. Instead, we’re all denied this kind of political justice.

    Orson (fc7c92)

  7. Trust Bush, indeed.

    I do trust President Bush. He doesn’t have to ask for my trust, he already has it. He’s earned it time after time. I not only trust him, I also admire him, and respect him. President Bush can count on me.

    However, I don’t trust Harriet Miers, and no one has the right to ask me to do so. The track record of Republican nominations to SCOTUS is lousy. From Ike’s selection of Earl Warren to Bush the Elder’s pick of Souter, the record stinks, as do way too many nominations in between.

    This idiocy has to stop now, here and now, with this nomination. We need a sterling selection, someone with demonstrated ability to handle complex legal issues at the highest levels. A nominee of such overarching intellectual achievements, and with clearly established personal and professional integrity, someone we can be proud of, that we can rally behind, and support. We need a brave and courageous independent thinker, not some “yes man” or someone “reliable” who will vote in predetermined ways.

    The highest court in the land deserves the best and brightest legal minds America can produce. If an individual nominee happens to be female, or a friend of GWB’s, it matters little so long as that nominee is also obviously and abundantly qualified.

    Harriet Miers might be a very good lawyer and a fine person, but she doesn’t have the credentials to be on our highest court, we can do better, we have to do much better.

    Black Jack (ee9fe2)

  8. So, let me get this straight: Bush wanted to avoid a fight with Democrats, so he picked one with Republicans?

    Kevin Murphy (6a7945)

  9. Kevin,

    Not quite, but not too far off the mark either. And, thanks for the civil way you put the question. It’s refreshing.

    President Bush wanted to appease the PC affirmative action crowd, nominate a woman, and avoid a fight with Senate Dems.

    He failed to appreciate the outrage of conservatives, was taken aback by it, then tried to brush off criticism of his choice and force HM on us. GWB blundered into this ugly cat fight and hasn’t yet realized how wrong the nomination is, nor has he faced up to the risks involved.

    Initially, I thought he would snap to the problem and correct it immediately. I gave it 24 hours, but when his bully boys started throwing their weight around and calling conservative opponents snobs and elitists, I had to step back, count to 10, eat a bug, and then start raising hell.

    I don’t want this fight, no one on the right does, but I simply refuse to stomach a 2nd rate crony nominee for SCOTUS. The court is too important an issue. That’s how I see it.

    Black Jack (ee9fe2)

  10. Kevin,

    I neglected to mention that if you make a distinction between the Republican Party and the political conservatives who, for want of a better vehicle, often support the GOP, the bedrock issues under discussion will be easier to grasp.

    Stated earlier: Conservatives are Consevatives first, and supporters of the Republican Party by default. Think of Harriet Miers as a divorce lawyer and you get closer to an understanding of the consequences of abusing one’s mate.

    Black Jack (ee9fe2)

  11. Black Jack, let’s hope we’re wrong. Beldar makes some excellent alternative points in at least two posts from the last few days as do others such as sammler.

    I for one don’t believe it is essential to have any experience whatsoever as a judge to be qualified for the Court. A good mind and a large dose of common sense seem to me to be the main prerequisites. I believe the last few decades of Court decisions from the “highly qualified” , jduges, professors and other legal geniuses makes that case adequately without much further argument. Whether Ms Miers meets my suggested “qualifications” is yet to be seen – I’m hopeful Bush is correct in his assessment.

    Harry Arthur (40c0a6)

  12. Harry,

    I’ve read Beldar, but remain unpersuaded. And, I respectfully disagree that it isn’t essential for a nominee for SCOTUS to have judicial experience. I think it is absolutely essential, others can make up their own minds. There are lots of nice folks with good minds and plenty of common sense around, but I don’t necessarily want them on the high court either.

    Also, I don’t think the wrongheaded decisions of the recent past are a result of excessively experienced judges, but from partisan adherence to liberal nostrums clearly at odds with the spirit, meaning, and intent of our Constitution.

    We have major problem with separation of powers. Now is the time to start fixing it. We need a nominee in the mold of Thomas or Scalia. It’s as plain as the nose on your face.

    Black Jack (ee9fe2)

  13. Didn’t Bush support both Spector and McCain in their campaigns? How hard did he push to get the ‘gang of 14’ to back down?
    While I see that he’s a bit hamstrung in his appointments thanks to gutless Republicans, it also seems to me that at least some of those gutless Republicans are those he supported. He contributed to the problem and now we’re being asked to excuse him because of that same problem.

    DeputyHeadmistress (e71725)

  14. So, Jack, just where’s our pool of highly qualified Constitutional originalists with judicial experience going to come from, if not from Republican judicial appointments? I know you were referring to SCOTUS appointments in your earlier comment, but it’s reasonable to conclude that if you’re right about the Republican track record then there’s a deficiency of good judges not just on SCOTUS but in the federal judiciary as a whole. Presumably, the states aren’t immune from the problems that have plagued the Republicans at the national level, and perhaps if judicial experience is important, then it’s also important that at least some of that experience be on a federal appellate court.

    I agree with you regarding Miers, but not regarding judicial experience. I think Roberts will be a very good CJ, but I don’t think his qualification depends very much on his brief experience as a judge. There’ve been many good Justices who hadn’t been a judge before getting appointed to SCOTUS, and given the state of the confirmation process for federal judges, requiring a nominee to have been through that process probably removes too many good candidates from the pool. It may be difficult to find the next Scalia or Thomas on the federal bench.

    TNugent (58efde)

  15. TNugent,

    You answered your own question: The pool is made up of judges previously appointed by Republicans. It’s your next conclusion which is problematic. Mixed with squandered opportunities are appointments of superior quality. SCOTUS candidates are abundantly there for the picking.

    I don’t think it will be all that difficult to locate a good conservative nominee, if you skip the PC affirmative action/diversity crap and look for a well qualified judge with appropriate experience, surpassing intellect, and vigorous independence of thought. President Bush has a list of just such candidates. All he needs is the intestinal fortitude to pick one.

    Black Jack (ee9fe2)

  16. Black Jack, We need a nominee in the mold of Thomas or Scalia. We are in total agreement here, hence my ambivilence over the Miers choice. I can’t for the life of me understand why Bush didn’t go to the front bench for his choice, given that he promised us a justice in the mold of Scalia or Thomas.

    Honestly, I find little that you’ve said with which I can disagree, even moderately. I’m just trying to see whether there’s another side to this story. The more I read, however, the less enthused with Bush’s choice I become.

    Harry Arthur (b318a5)

  17. Re 16 — In my book, Miers is “in the mold” of Clarence Thomas, in the sense that, when Thomas was nominated, he (1) was picked in part for his race, as Miers was for her gender (2) had an undistinguished resume — less impressive than Miers’ but for one year on the DC Circuit during which he wrote no consequential decisions, and (3) was like Miers a cipher on issues other than affirmative action: at his hearings he testified he had never even thought about his position on Roe v. Wade.

    Mark G@lliher (805000)


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