Patterico's Pontifications

10/4/2005

Bainbridge Finally Realizes that Parties in Power Should Use that Power

Filed under: Judiciary — Patterico @ 6:18 pm



One of these days I’m going to favorably link to a post by Steve Bainbridge, just so he doesn’t get too put out with the way I’ve been bagging on him on the issue of judges.

Today is not that day.

I just heard Bainbridge on Hewitt’s show, criticizing the Miers nomination. Bainbridge said — and I quote:

What’s the point of having power if you’re not going to use it?

He then complained that the Republicans control the White House and both houses of Congress — so why did Bush give us such a weak nominee?

My jaw just about hit the floor of the car.

That argument sounds very familiar. It’s the argument a lot of us were making back when we wanted to see the nuclear option triggered — before we got derailed by the turncoats like John McCain and his Gang of 14. And who stood foursquare behind the Gang of 14? One Professor Stephen Bainbridge.

Now: would Bush have made this decision if the judicial filibuster had long since been thrown into the dustbin of history? It’s impossible to say. I fully agree with Bainbridge’s opinion: the Miers nomination is a travesty, given the numerous solid and eminently qualified picks out there. It’s possible that Bush would have picked a crony regardless of the filibuster.

But we’ll never know for sure.

It’s interesting that the issue of filibusters keeps raising its head. Just before Bainbridge made his comment, Hewitt — himself a Miers defender — said that the need for a filibuster-free Senate was one of the reasons Bush made this decision. And Mickey Kaus calls himself “eerily prescient” for saying in May that the filibuster capitulation was “favorable to the Dems” because

If the “nuclear option” is on the line when President Bush nominates a Supreme Court justice, that in itself will circumscribe his choice. He won’t want to name someone too controversial, lest the public side with the pro-filibuster Dems.

Mickey says today:

Now Bush has named Harriet Miers–a nominee pre-approved by the Senate’s Democratic leader and seemingly controversial only on the right.

Coincidence? Again: we’ll never know — thanks to the Gang of 14, and their supporters like Stephen Bainbridge.

P.S. I doubt Prof. Bainbridge is going to concede error on the Gang of 14 issue — but cruising his blog today, I have decided I don’t have to wait for another time to cite him favorably. He has several good posts on Miers, including this statement:

The Supreme Court of the United States is no place for B+ picks. It’s a place for A+ picks. This is the big leagues. Decisions that affect millions of lives are made routinely by this Court. Over the last 40 years or so, those decisions have consistently devalued life while endorsing an ever more expansive role for the federal government. You don’t bring the Constitution back from Exile with your B team; you bring your A team to that fight.

Exactly.

UPDATE: Here is the transcript, which shows that I quoted Bainbridge accurately.

28 Responses to “Bainbridge Finally Realizes that Parties in Power Should Use that Power”

  1. I too would have preferred a conservative with a track record. But it is a political process, and the President had to consider all the options. In addition to the Democrats, there are a handful of RINOs to consider. They don’t necessarily prefer conservative judges.

    The president had to consider the possibility that his first nomination to this slot would be filibustered and eventually blocked. If he nominates Luttig, and he is blocked, then it is because he is too conservative for the Dems and the RINOs. Where does he go from there with the replacement pick? But, if Miers is blocked, it is because she lacks experience. Where does he go from there? Then he nominates the much more experienced Luttig.

    Miers may not be his first choice, and will likely be approved, but he has set himself up to get a conservative judge under the two most likely scenarios.

    CPAguy (cfffbf)

  2. W should have put up the A nominee, and thrown down the gauntlet in front of the RINOs and Dems. How many of them are up for re-election in 06, and how many of those are from states that are red or trending red? There’s no way that any of them would have pulled the gang of 14 crap on a highly qualified nominee (think Luttig, among others). That strike against them, plus a very pissed off Republican President possibly campaigning for a primary opponent or maybe even for an opponent in the general election would have been a chance not worth taking. No, W could have had anyone he wanted, and if the Dems had put up a fight, it would have weakened them and strengthened the Republicans — just look how bad the Dems looked in the Roberts confirmation hearings. Almost all of the Dem leadership blatantly took their orders from NARAL and the rest of the usual suspect single issue interest groups, and W just let them off the hook, putting the finishing touches on what mother nature and Michael Brown had started — not just stopping, but completely reversing the momentum he had gained by picking Roberts. The Dems can’t get out of their own way — they overplay their hand at every turn, miscalculate the country’s mood constantly, playing to their ever-diminishing base, and rather than making the most of a rare opportunity, W hands them a freebie.

    It’s the President’s pick to make, but there’s no good spin to be put on this one (just ask Hugh if the tartar sauce made his sandwich taste any better).

    TNugent (6128b4)

  3. Yeah, I heard that show on internet radio.

    I thought the 30 second calls that Hugh breezed right past were probably the best points (something about separation of powers, Miers a faithful right hand errrr ahhhh person)

    (better than “Bush’s handmaiden”)

    You can tell Hugh likes points he already has a canned reply for.

    Paul Deignan (d2fd7b)

  4. On Meirs:

    The scoop is now that she is a Dr. Dobson certified radical pro-lifer. Is she? I don’t know, but I do know that the evangelical pro-lifers are slurping this line right up.

    The point is that she cannot be the Roe overturning ideologue and sure thing with Reid both at the same time. Someone is a chump.

    Either way, the filibuster deal is irrelevant to this calculation. Luttig would have blown past a filibuster by shear talent.

    On the other hand, nominating a crony is “extrordinary” and has no good defense.

    Paul Deignan (d2fd7b)

  5. Fwiw, I’ve had a Senate source telling me that the Gang of 14 was really all about the SCOTUS all along, and that the Gang had told Bush that he had to take the process of consultation VERY seriously–and that choices like Janice Rogers Brown were not a legitimate option.

    I didn’t believe him–I couldn’t believe that Bush would screw his base like this.

    Geek, Esq. (7fcaea)

  6. Well, Robert Bork was an A+ pick. How many Supreme Court decisions was he the deciding vote on?
    Oh, right–none. Because he didn’t get confirmed.

    Read Sun Tzu: The definition of winning is “to advance your position, to take territory from your opponent”. The best battles are those you win without having to fight.

    I’ll take a Miers who is well-known to Bush and who is easily confirmable any day over Janice Brown (my own personal preference) whose nomination will be defeated.

    ray (588e82)

  7. And shall we also read Machiavelli? i.e. that it is better to appear to be (translate as) conservative than to be conservative?

    (The Mahiavelli quote was actually, “liberal” but that was when liberals were more like our conservatives.)

    P.S. Janice Brown is on the bench today because of the agreement.

    Paul Deignan (d2fd7b)

  8. P.P.S. That quote from Sun Tsu is suspect.

    As we know, the definition of winning is by destroying the enemy force, not by position. The Germans proved this in WWII and we use it today in the Air-Land battle concept.

    Paul Deignan (d2fd7b)

  9. Here is the actual quote, “The best victory is when the opponent surrenders of its own accord before there are any actual hostilities…It is best to win without fighting.” i.e. to destroy the enemy will to fight–this concept centers about the enemy force, not position.

    Position is only a means to an end.

    Paul Deignan (d2fd7b)

  10. Here’s a Sun Tsu quote that is more appropriate:

    “All warfare is based on deception.”

    But who is being deceived?

    Paul Deignan (d2fd7b)

  11. “The best victory is when the opponent surrenders of its own accord before there are any actual hostilities…It is best to win without fighting.” i.e. to destroy the enemy will to fight–this concept centers about the enemy force, not position.

    Right, which is why it’s premature to rule out the possibility that Miers’s nomination was the right thing to do. [Not saying it was, that’s for sure, just that it might be.] For all we know, Bush knows firsthand that Miers is a stricter constructionist than any of our A+ list candidates who would be filibustered, and when some idiot Senator from Nevada fell in like with her at a personal level, he saw an opportunity and pounced on it. If that was the strategery, and it works (two medium-sized ifs, translating into one larger than average one, but not implausible), then this could prove a brilliant move indeed. We’ll find out when she starts ruling, hopefully in time for the third Supreme Court nomination, when Bush either appoints one of the judges we were hoping for on this round, or appoints his brother Neil.

    And yes, Paul, there almost certainly will be a third nomination. The chances of Justice Stevens lasting three 3 1/4 more years are almost as remote as the chances of President Bush heeding your asstastically stupid recommendation that he resign.

    Xrlq (428dfd)

  12. We’ll find out when she starts ruling . . .

    Too late. That’s the problem.

    Patterico (4e4b70)

  13. That’s always the problem. For all we know, Bush broke his promise to appoint strict constructionists when he named John Roberts, and kept it when naming Miers.

    Xrlq (428dfd)

  14. That’s always the problem. For all we know, Bush broke his promise to appoint strict constructionists when he named John Roberts, and kept it when naming Miers.

    Before John Roberts ever sat down in the confirmation hearings, I had a good sense that he was my kind of judge, based on his opinions and his memos. I bet I end up disagreeing with him on some specific cases, but I will be absolutely shocked if he ever ends up writing some Kennedyesque-style nonsense like: “At the heart of liberty is the right to define one’s own concept of existence . . .”

    With this woman, I don’t know anything. Nor does she have anywhere near as distinguished a background as Roberts.

    Yeah, sure, for all we know, she’s great, trust Bush, etc. We also know he really wanted to put Gonzales up there, for similar cronyistic reasons — and we know something about his philosophy, and it ain’t reassuring.

    Sorry, not convinced.

    Patterico (4e4b70)

  15. X,

    My recomendation that Bush resign was not a political gambit, but a statement of principle for the good of the country, i.e. it was not a prediction for his personal benefit but for ours.

    George Will echos the sentiment today and I think the HM nomination bears me out as being on the right track with the assessment.

    Paul Deignan (9e57a7)

  16. Your recommendation that Bush resign is silly. Whatever it was intended to prove, all it accomplishes is to convince readers you are not to be taken seriously.

    Xrlq (428dfd)

  17. Your recommendation that Bush resign is silly. Whatever it was intended to prove, all it accomplishes is to convince readers you are not to be taken seriously

    I know it will break his heart, but you are right Xrlq. From that point on I gave him equal time with the KosKids and the DU’s. I don’t have time for LaLa Land.

    rls (0516f0)

  18. X,

    I don’t see things in a strictly partisan fashion. There are 1000 or so dead in NOLA. Many died while Bush played politics.

    He should fry for that.

    Paul Deignan (9e57a7)

  19. Y’know, Paul, just when I thought you’d said the dumbest thing that possibly could be said, you went and blamed President Bush for causing (1) a hurricane, (2) an inept mayor of a notoriously corrupt city, who is a member of the opposing party (3) an equally inept (at least) governor of an equally corrupt state, who is also a member of the opposing party, (4) a pissing contest between #2 and #3, or (5) some combination of the above. With that, you are officially a nut.

    Xrlq (5ffe06)

  20. X,

    Why are you being so nutty about some decent criticism? Do I have to preface my remarks by saying that I know Bush did not cause a hurricane, global warming, etc.? Come on. I know you are better than that.

    My criticism is very specific. I have to believe that in all the discussions I have had with various people that I must have went through the line of reasoning with you as well. There is some on my blog. Please feel free to weigh in there also.

    Consider this. The more inept the mayor and Governor, the more culpable the administration. I bet that strikes most knee jerkers as “Doesn’t compute”. But, I bet that if you thought about it, you would realize it also. Just a little insight to throw your way.

    On partisanship: it is for tools, not for you. Think man, think. God gave you a fine brain. You have His permission to use it for yourself.

    Paul Deignan (9e57a7)

  21. Our host wrote, “Nor does she have anywhere near as distinguished a background as Roberts.”

    I respectfully submit that that is demonstrably, objectively incorrect. Her distinctions are not the same as his. His distinctions are not the same as hers. Each has distinctions that complement the other’s, in fact. Both have distinctions that are quite rare, and impressive of their own accord.

    If your pitch is that one must have graduated from Harvard instead of elsewhere, that one must have clerked on the Supreme Court and not elsewhere, that one must have had an appellate advocacy practice and no other type, and that being a subordinate to the Counsel to the POTUS is a better qualification than being Counsel to the POTUS, I respectfully disagree.

    Beldar (737870)

  22. Beldar,

    What then, exactly, does she bring to the table besides a rubber stamp for Bush the person?

    Paul Deignan (d2fd7b)

  23. If your pitch is that one must have graduated from Harvard instead of elsewhere, that one must have clerked on the Supreme Court and not elsewhere, that one must have had an appellate advocacy practice and no other type, and that being a subordinate to the Counsel to the POTUS is a better qualification than being Counsel to the POTUS, I respectfully disagree.

    Beldar:

    I have already said — in a post that discussed you — that that is not my pitch. My pitch is this:

    I don’t maintain that you have to go to a top-rated law school to be a Supreme Court Justice, or graduate at the top of your class, or do a Supreme Court clerkship, or even an appellate clerkship, or argue appellate cases, or be a law professor or a judge, or write published articles about the law.

    But when you have done none of these things — though it’s only an educated guess as to a couple of these issues — it causes me some real concern. After all, the Supreme Court isn’t a “second tier cabinet post.” It’s not a place for a “B+ pick.” It is unquestionably an A++ position that demands an A++ candidate. There are plenty around. Miers is not one of them.

    Patterico (4e4b70)

  24. Why are you being so nutty about some decent criticism?

    Because it isn’t decent criticism. It’s the kind of loony crap I’ve come to expect from DU or Kos. It’s a big enough stretch to blame Michael Brown for 1,000 dead in the one state whose own local and state government don’t have their act together, when casualties were pretty low everywhere else. To blame Bush for Brown’s alleged error – which itself consisted primarily of adhering to FEMA’s proper role under our federalist system – is beyond nutty.

    Do I have to preface my remarks by saying that I know Bush did not cause a hurricane, global warming, etc.? Come on. I know you are better than that.

    I didn’t just identify the hurricane itself, which Bush obviously didn’t cause. I also identified the individuals primarily responsible for dealing with the disaster – who Bush also didn’t cause, and probably wouldn’t have selected if he did get to decide who would be in charge at the state and local level (hint: not Democrats). I may have overlooked a factor or two, but I defy you to identify a single factor that makes it reasonable to blame Bush for anything that happened in Louisiana.

    Consider this. The more inept the mayor and Governor, the more culpable the administration. I bet that strikes most knee jerkers as “Doesn’t compute”.

    Not only that, it also strikes everyone else who doesn’t have his head up his ass as “Doesn’t compute.” Of course it doesn’t compute! How the hell is the federal government to blame for the failings of a single state?! That makes about as much sense as blaming Kofi Annan and the U.N. for … oh, I dunno, Robert Mugabe, whoever. It’s all well and good to say “the buck stops here” when there’s a basis for passing the buck “here” in the first place, but in the case of Louisiana, the buck has got to stop somewhere between New Orleans and Baton Rouge. If the federal government had been the one to screw up, what are the chances that the results of that screwup would have been confined to a single state?

    Xrlq (428dfd)

  25. It’s a big enough stretch to blame Michael Brown for 1,000 dead in the one state whose own local and state government don’t have their act together, when casualties were pretty low everywhere else.

    I don’t blame Brown. I blame Bush. Bush (and Rumsfeld) had the authority to order USNORTHCOM into action.

    When it was evident that the Louisana officials were overwhelmed and/or incompetent in providing for the evacuation of the citizens of the United States (and of LA) Bush was obliged to leap into action. He leap into a trance instead.

    The more incompetent the local officials (and this was clear by Sunday), the more incumbant it was for Bush to act. Not many officials would come out in public and show their stupidity, these did.

    (You can search on my name to review the arguments) I think I discussed them here and at Polipundit (perhaps other places as well).

    Paul Deignan (d2fd7b)

  26. The idea is that if you have someone that is clearly a weak player, you have to take extra provisions to make sure they don’t screw the team.

    Paul Deignan (d2fd7b)

  27. Your post is terrific. I realized the same thing before reading Mark Levin’s piece on NRO, which also gives partial blame to the Gang of 14 for this poor decision. Robert Novack indicated that the Senate Republicans told Bush they were not about to fight for Prisilla Owen AGAIN.

    In other words, Bush knew he couldn’t get some of the A++ candidates through, because of the squishy moderate Republicans in the Senate. And the filibuster deal is the real killer. If they had ended the filibuster possibilty at the time, they could get 50, 51 votes for an Edith Jones, a Janice Rogers Brown, a Michael Luttig, etc. But now, those pro-choice Maine girls and their ilk will not vote for the “nuclear” option if it meant a pro-life vote gets on the court. They would have probably voted for the nuclear option at the time, when a SC seat wasn’t on the line, now they won’t.

    Lindsay Graham, John McCain, etc have a lot to answer for.

    I still think that even though Jones or Brown wouldn’t have gotten through, Luttig or McConnell could have. But apparently Bush wanted a female, probably due to pressure from his wife (thanks a lot, Mrs. Bush) and even Senator Brownback!

    drhackenbush (3820b6)


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