Patterico's Pontifications

10/12/2005

Still Want to Defend Bush Based on his Judicial Selections?

Filed under: Judiciary — Angry Clam @ 6:16 am



[Posted by The Angry Clam]

Two major, intertwined defenses of the Miers travesty are that

1) As Counsel to the President, Miers helped Bush vet judges, therefore she’s probably in the same mold;

and

2) Bush has been “rock solid” on judges so far, so we should trust him.

The first one quickly becomes comical. Miers assumed her current position in February 2005, right as the 109th Congress began. Let’s take a look at the judges nominated since then. Some solid names on that list- Bill Pryor, Janice Rogers Brown, Priscilla Owen, Brett Kavanaugh, and William Myers.

OOOOOPS! All those people are re-nominations from the 108th Congress, when Alberto Gonzales was in charge of picking people. Somehow, I don’t think that such a fact would reassure me over Gonzales, and, as you’re about to find out, his track record on this is huge and amazingly solid compared to Miers’.

So who do we have since Miers took over, anyway? Only one- James Payne, to a seat on the 10th Circuit. Good job Harriet, nearly nine months into the job and you finally get a single nominee off your desk. Not really helping much to disprove her reputation as slow and indecisive or making the rumors that Andy Card thought she was incompetent and wanted her out of her job as secretary (a position that reports to him, but from which he cannot fire her due to her friendship with the President), now does it?

(This discussion inspired by Randy Barnett)

I have to admit that #2 actually carried some weight with me, but then I sat down and thought about it some more. Bush didn’t actually go through the big stack of resumes and pick these people out. He left that up to the good Federalist Society members that inhabit the Office of Legal Counsel and, somewhat surprisingly, Alberto Gonzales’ own staff.

Bush’s own personal picks have largely been disasters- Michael Brown, Julie Meyers, Bernie Kerik, the list goes on. His judgment is not very good when people he knows personally are involved.

But there is another, deeper reason that I’m concerned, which Quin from Southern Appeal noted yesterday on Confirm Them: Bush doesn’t really care about the judiciary. Sure, he’s willing to nominate good judges, but he doesn’t lift a damn finger to help them- no press conferences, no major administration pressure on the Senate, no media campaigns.

The bottom line is this: Bush doesn’t really give a damn about the judiciary on principle like so many of us do, and he’s totally happy to sell it down the river to allow him to get back to spending huge sums of money and appointing his friends to various federal offices.

I’ve quoted nearly all of Quin’s post in the extended entry, but do yourself a favor and go read the whole thing– it’s excellent, and our good buddy actus makes an appearance, bitching about the tax cuts.

…I made a lot of its readers angry with an anti-Bush rant, based on him not being truly a conservative. Respondents especially cited his excellent judicial picks as proof that Bush could be trusted. I responded then, and will repeat now, my theory: That the good nominees were raw meat for the right — a pure political calculation. Oh, sure, the Bushies probably prefer conservative judges to non-conservative ones, which is why they hired a bunch of bright young conservatives to vet the nominees. But judges were never the priority for this president that other matters were. He was happy to put forward good names, but not to fight for them. I repeat: NOT TO FIGHT FOR THEM. The truth is that the administration has used very little political capital to actually fight for its judicial picks. It threw out the names, but then let the right do all the heavy lifting. Very few press conferences, very few examples of real focus from the White House, very little agressive advocacy of textualism/originalism. In fact, it took continued pressure from the right, and some bold Senate candidates who grabbed on to the issue of judges, to keep the issue anywhere near the front burner.

Moreover, it took an organized effort, WITHOUT White House direction, to put the constitutional (misnamed “nuclear”) option on the table; otherwise, the filibuster would have continued to work against all our nominees; and indeed it more or less works now. Remember that the WHite House distanced itself from the constitutional option when it came out, calling it an internal Senate matter. And does anybody really believe that people like Lindsay Graham and Mike DeWine would have gone along with the pathetic Gang of 14 cop-out if the White House had told them, in no uncertain terms, not to do so? Of course not.

I have complained, over and over again, about the lack of White House fight on the issue. It’s as if the White House is afraid of creating a major public issue, as if it doesn’t know that the issues are all on our side on this. Its political goal was to let the right get riled up over judges, so as to increase the “base” turnout, but without ratcheting up the profile of the issue with the general public. The logical extension of this is that when push comes to shove, Bush would chose to do anything he could to defuse the issue, to pick a “safe” choice (by Beltway political judgment) rather than fight. Hence Roberts — whom Bush knew personally from Bush 41 administration (satisfying his personal loyalty fetish), and whom several Dems had told him was not terribly objectionable. And now Miers, again who more than satisfies his personal loyalty fetish, and who even Harry Reid suggested would be okay.

Evidence of his unwillingness to fight for judges came very early in his administration, when he failed to fight for Chris Cox on the Ninth Circuit. What a perfect fight to pick: The brilliant, telegenic, articulate Cox against the major lefty Barbara Boxer! Instead, Bush punted, and Cox withdrew.

Finally, there’s the matter of the seat-of-pants quality of all this. The White House has had 13 months to prepare itself for two S. Court openings, ever since Rehnquist got sick. It was already known that O’Connor wouldn’t be far behind Renquist, if at all. IF THE ISSUE OF JUDGES WERE TRULY IMPORTANT TO BUSH, he would have ordered his staff to game-plan everything well out in advance, to be prepared to go with choices 1, 2, and even 3, and with a backup for each choice if political circumstances changed — and he would have had them not just prepared with the best pick, but to have a political/PR plan in place to sell the selection, to carry the fight (if a fight were needed) to the Democrats and before the public, to make sure the nominee(s) were thoroughly vetted and ready for public scrutiny and prepared personally for battle.

Instead, all the evidence is that Roberts was a close call over Clement (and probably at the last minute) and that Miers was a last-minute choice as well — or at least, as reported, only seriously considered even in the last two weeks or so. Why, if the president were serious about judges and understood their importance, would he still be making up his mind on the nominee on the weekend before the announcement?!? If he were serious, the whole roll-out would have been planned well in advance.

I could go on and on. The point is, the White House has been playing conservatives for suckers all along, using judges as raw meat to keep us energized but never as a main focus of its own work. But just as they thought the right was in Bush’s pocket — just a group to be fed once ina while, but slavishly loyal — they totally misunderstood not just the intensity of the right’s concern about judges, but also, most importantly, its intellectual depth. THis wasn’t just about a fringe group wanting to be assured that Bush’s choice would outlaw abortion; it is about mainstream conservatives caring deeply about getting a brilliant, well-qualified, intellectually serious set of judges and justices who will not just “vote” right on the bench, but do so for the right reasons, with unassailable logic and excellent writing, and with great clarity, without logical loopholes. In short, we were serious about good judges; the White House was serious only about keepingwhat it considers an interest group (us!) at bay.

All of which explains why the White House was so taken aback at the reaction to the Miers choice: because it never bothered to understand us, or our interest, in the first place.

A pox on everybody involved in the Miers decision!

— The Angry Clam

10 Responses to “Still Want to Defend Bush Based on his Judicial Selections?”

  1. Bush doesn’t really care about the judiciary….

    The bottom line is this: Bush doesn’t really give a damn about the judiciary on principle like so many of us do, and he’s totally happy to sell it down the river to allow him to get back to spending huge sums of money and appointing his friends to various federal offices.

    If this were said to me in person — say, during an after-dinner discussion of politics — I would politely stand up, excuse myself, and make sure to avoid the speaker forever after.

    This is indistinguishable from what one would read on dKos or DU.

    Beldar (2fbad2)

  2. It’s important, especially when discussing politicians, to look at actions rather than words.

    When has President Bush done anything more than pay lip service to the idea of a strong, originalist judiciary? When has he ever spent political capital to get his nominees concerned, rather than letting them twist in the wind, like he did to Miguel Estrada, Chris Cox, Carolyn Kuhl, and many others?

    Likewise, when and where has he cut the budget? Has he vetoed any spending? Even once? Of course not.

    The fact is that the President talks a big conservative game, but he sure doesn’t govern like one. Indeed, Bush is beating LBJ on spending. Think about that for a moment- the Great Society and the Vietnam War buildup didn’t cost as much as what the President is doing. Also, note that those are based on percentage increases, so it should actually have been easier to run the federal budget up in the 1960s when it was far smaller.

    It’s a sad day when the only Democratic President of the last quarter century was far more fiscally responsible than the current Republican one. And that’s coming from someone who has voted a straight Republican ticket since he was old enough to vote.

    So I don’t think that it’s unfair to say that about our President- the same man I voted for twice. A reflexive “but the lefties on Kos are saying it, it can’t be right!” circle-the-wagons mentality is what produces mockeries of everything that conservatives have worked for such as the Miers nomination.

    Angry Clam (fa7fff)

  3. Respectfully,

    With all the previously submerged issues now popping up for public debate, I wonder if GWB had any inkling of the Pandora’s Box he was opening with the Miers nomination. And, I also wonder if he had it to do over again if he wouldn’t prefer to keep the lid on.

    But, if the past is prologue, and if we are where we are, why not face up to our several discontents and address them openly and civilly. Perhaps we can clear the air, or at least define our complaints in such unambiguous and easily understandable language that candidates in 2006 can tell us what their positions on Conservative Issues are, and what exactly they intend to do.

    Sort of like Newt’s Contract with America only a Contract with the GOP instead. It would help Conservatives decide how to vote.

    Black Jack (ee9fe2)

  4. Bush people lie and defame their opponents in defense of their bad policy choices. But we’ve known that for awhile now.

    actus (ebc508)

  5. Shut up, commie.

    (heh.)

    Angry Clam (fa7fff)

  6. When has President Bush done anything more than pay lip service to the idea of a strong, originalist judiciary?

    Perhaps you should ask Bill Pryor this question. I’m trying not to be snarky here, because I do not want to misunderstood. I’m not joking. I’m not using hyperbole. I’m not being sarcastic. Imagine, if you can, the words I’m writing being spoken aloud in an absolutely flat, calm monotone, without any inflection.

    Recess-appointing Bill Pryor and Charles Pickering, and reappointing all of the same circuit court nominees who’d been filibustered in the previous Congress, demonstrates more than lip service.

    I cannot see any other rational reading of what you’ve written but that you have now declared yourself to be a political enemy of the President (or perhaps you’d say he’s declared himself a political enemy of yours). There’s nothing but over-the-top vitriol and spite in this, nothing that can remotely pass for reasoned and fact-based argument. There’s nothing constructive. There’s not even a hint of an olive branch, no search for common ground. I find this not only unpersuasive, but offensive, and arguing with you seems absolutely pointless. I genuinely cannot distinguish your point of view from those expressed on dKos or DU. “Pox,” “mockery” — these are not terms used by someone who cares any longer about being misinterpreted by anyone or giving offense to anyone. “Never bothered to understand us” — that’s the sort of phrase used by someone who is entirely self-absorbed and who has lost touch with what’s actually at stake.

    I believe that your intent is to offend. Okay. I’m offended, and I’m politely acknowledging that, standing up, and walking away from the table.

    Beldar (2fbad2)

  7. But if the President is not conservative on lo these many issues – including now judges – why would you vote for him? Twice. And why would you be shocked when he then (supposedly) goes and does something else that is not conservative?

    Steve (ef571c)

  8. Instead, all the evidence is that Roberts was a close call over Clement (and probably at the last minute) and that Miers was a last-minute choice as well — or at least, as reported, only seriously considered even in the last two weeks or so. Why, if the president were serious about judges and understood their importance, would he still be making up his mind on the nominee on the weekend before the announcement?!?

    Interesting argument, that. Since you’re gleefully quoting a passage that alleges Bush didn’t make up his mind on Miers until the last minute, I take it I can count on your support for my recent fisking of George Will for blowing the “diversity” thing out of proportion? Your blogboss took me to task for mistaking the quote for an “airquote,” given that Bush had used the word in a speech made a full week beforehand. But if your position is that Bush hadn’t even made up his mind then, it was an “air quote” indeed. [That was one of two factual corrections Patterico got exercised about. The other – noting that engaging the Senate in one’s judicial selections has semi-recent precedent as well as grounding in the text of the Constitution – actually strengthened my case.]

    Likewise, when and where has he cut the budget? Has he vetoed any spending? Even once? Of course not.

    And this has what exactly to do with whether Bush is serious about the judiciary, if anything?

    Xrlq (ffb240)

  9. Angry Calm:

    Um… point of order: when did Michael Brown, former head of FEMA, become a “disaster” rather than a scapegoat?

    I’m actually suprised you’re not aware of this, but FEMA reacted very swiftly to Hurricane Katrina, did everything it was supposed to do, prepositioned food, medicine, water, and other supplies, made thousands of buses available for evacuation, and did all this much faster than had ever been done for any correspondingly huge hurricane before.

    But they were thwarted by the incompetence and fecklessness of the governor of Louisiana, Kathleen Babineaux Blanco, and the mayor of New Orleans, Ray Nagin (the Grand Nagus, as I prefer to call him). Virtually all of the problems directly resulted from stupid decisions made by those two people — decisions that by law were up to them to make.

    I can link a dozen posts from Power Line to back this up, but I’ll content myself with a couple:

    A Rapid Reponse

    Bad Coaching

    And of course, Brown has headed up FEMA since early 2003, handling disasters as diverse as the entire 2004 hurricane season, California wildfires, and the crash of Columbia, receiving nothing but praise for his work.

    Yet as we all know, Brown had “a very thin resume,” one that he might even have padded (although that Time Magazine story was never actually verified). So here we have a case where Bush looked beyond the paper resume to put somebody into an important position, and the pick turns out to have been an extremely good one.

    I thought most of us already knew that; perhaps it didn’t stick in your mind in all the excitement.

    Dafydd

    Dafydd (f8a7be)

  10. Bernie Kerik probably would have done well, too. He was a bad pick, but for reasons having nothing to do with his competence or lack thereof.

    Xrlq (e2795d)


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