Patterico's Pontifications


Memo to Lindsey Graham

Filed under: General,Judiciary — Patterico @ 11:42 pm

Senator Graham:

I understand that you said today that critics of Harriet Miers should “shut up.”

Remember when Democrat Senators were filibustering qualified judicial nominees? That was the time to say “shut up” — to the Democrats.

You failed us, and we may now be paying the price with the nomination of Harriet Miers. Many people have opined that George Bush made this nomination because he was afraid a strong nominee would be filibustered.

Because of your little Gang of 14. Because of you.

So why don’t you “shut up” already?

Thank you.

Blame Gang of 14 (and Bainbridge)

Filed under: Judiciary — Patterico @ 10:21 pm

Mark Levin says that the Miers nomination is Steve Bainbridge’s fault.

Not in so many words — but that’s the long and short of it, once you know all the facts.

Gravitating Towards Opposition: A Rant

Filed under: Judiciary — Patterico @ 9:51 pm

Now, I don’t want to get off on a rant here, but: I’m feeling myself being driven into the full-on anti-Miers camp, in part by the unconvincing arguments of people who seem bound to support her.

For instance, here’s Captain Ed:

The choice has already been made, by the man we elected to make it. We have demanded deference to presidential prerogative from the Democrats for the past five years on judicial nominations, and now it’s our turn to demonstrate that we know what that means.

I love Ed, I really do. And I know he shares my passion for an excellent federal judiciary peopled by strong judicial conservatives. But this statement of his is utter nonsense.

Let’s say we vote for a President largely on the strength of his pledge not to raise taxes. If Democrats say they want to raise taxes, and the President vetoes a tax hike, we are entitled to defend that veto by saying: Sorry, Democrats! You lost the election!

Now, what if that same President decides he wants to implement a tax hike? Are you trying to tell me that, because we voted him in, we have to stand still for it?? After all, under the Constitution, any tax hike has to start in Congress, and the President — not the public — has the exclusive power to veto that tax hike. According to Ed’s logic, if the President violates his campaign promise, and signs the tax hike, we’re required to shrug our shoulders in resignation, and say: hey, the choice has been made by the guy we chose to make it.

Is that what we’re really going to do?

No way! We’ll vote the bastard out! And if we can’t (because he is term-limited out), then we’ll fight him tooth and nail.

I voted for George W. Bush in large part because I expected him to nominate genuine judicial conservatives to the federal bench — especially the Supreme Court. Last election season, he said he favored Justices in the mold of Scalia and Thomas.

As far as I’m concerned, that’s as important as “Read my lips.” Maybe judges aren’t that important to you — and that’s fine. But to me, it’s a top issue.

And if you’re talking judges in the mold of Scalia and Thomas, Michael Luttig fits the bill. I have no idea whether Miers does.

It’s a double question of 1) qualifications and 2) commitment to judicial conservatism. And these two are connected. Judicial conservatism means knowing the law, inside and out. It’s easy to simply choose a result and build an opinion around it. But to come to the right decision, based on rigorous legal knowledge and backed by a powerful intellect capable of authoring irrefutable judicial opinions — that’s hard.

It’s not enough to be “plenty smart.” It’s not enough to be a solid B+ pick. You have to be at the top of the game, or you will inevitably turn into someone like Lewis Powell, or Harry Blackmun, or Sandra Day O’Connor — in other words, someone who issues decisions that split the baby. And in the abortion context, that’s not just figurative language. O’Connor’s decisions didn’t just split the baby — they stabbed the baby’s skull with a pair of scissors, and sucked out its brains with a suction catheter.

So: George Bush made a promise, and we don’t know whether he has kept it — and by the time we find out, it will be too late.

That’s unacceptable.

Now: I no longer have to make the decision whether to vote for George W. Bush in the next election. But I can choose whether to support his Supreme Court nomination. And I have every right to make up my mind, and speak out — and the more some Gang of 14 turncoat like Lindsey Graham tells people like me to “shut up,” the more I want to speak out.

And guess what, Ed Gillespie? Calling people like me elitist and sexist doesn’t help either.

Nor do I find myself persuaded by Beldar — and that, more than anything else, suggests to me that I will never be persuaded. Because if a guy as articulate and persuasive as Beldar can’t draw me in, I doubt anyone can. I have criticized Beldar’s position over the past few days, and here is what he says today:

Mere weeks after major elements of Dubya’s base were soiling their knickers in nervousness over this “cypher” and this “unknown with only two years on the bench,” history has already been rewritten to paint John G. Roberts, Jr. as the uber-Nominee — the nominee who was such an obvious and compelling choice that Dubya basically gets no credit for picking him.

You’re not talking about me, Beldar. My instant reaction upon hearing of the Roberts nomination was: “Good choice.” When Ann Coulter questioned Roberts, I mocked her. Was Roberts my ideal nominee? No. But no sane person could question either his qualifications or his commitment to the rule of law, as opposed to the rule of judges. And I never did. And I’m proud to have John Roberts as the Chief Justice of the United States.

Based on what I know now, I can’t say I’d be proud to have Harriet Miers as an Associate Justice.

Beldar continues:

And by October 2015, whether the Miers nomination annoyed or sparked rejoicing among the conservative base way back in October 2005 will be the kind of thing relegated to a middle of the day “remember when” post in The Corner, a cute footnote to whatever Supreme Court nomination debate we’re all having then.

Yeah, well, it was ages ago when Ronald Reagan chose Sandra Day O’Connor instead of Robert Bork. 1981, to be exact — 24 years ago. That’s much further in the past than 2015 is in the future. Yet Reagan’s decision to forego Bork for O’Connor still stings even today.

As I have already explained, O’Connor was nominated at a time when Republicans controlled the Senate, and arguably could have pushed Bork through despite the presence of a few weak Republicans in the Senate. But because Reagan instead nominated a relatively undistinguished woman with a poor track record of judicial conservatism, we had to wait on the Bork nomination until after 1986, when the Democrats won control of the Senate and managed to engineer his defeat. The Casey decision upholding Roe, and numerous other ridiculous decisions since, are directly attributable to Reagan’s disastrous misstep in nominating O’Connor instead of the best-qualified judicial conservative around.

This is why defenses of capitulation, like this nonsensical post about “MOOSEMUSS,” remind me of the pride Neville Chamberlain felt in announcing peace in our time. These decisions have real consequences, and they last for decades. Forget 2015. We could still be smarting over this in 2055.

Guys, if you want Miers critics to refrain from declaring their open opposition to her nomination, you’re going to have to do a lot better than this.

Of course, that’s just my opinion. I could be wrong.

UPDATE: Bork was nominated in 1987. The post originally said that we had to wait until 1986 for his nomination; what I meant was that we had to wait until after the 1986 elections. But I did not make that clear. I have clarified this; thanks to Fritz for pointing it out.

Malkin Busts NYT

Filed under: General,Media Bias — Patterico @ 5:25 pm

Michelle Malkin busts the New York Times over its ridiculously biased story on Chuckaquiddick.

Ann Coulter: She May be Crazy, but I Love Her Anyway

Filed under: Judiciary — Angry Clam @ 8:20 am

[Posted by The Angry Clam]

Ann Coulter rips into the Miers nomination in her typical fashion.

I especially like her take on the whole “you dirty elitists!” argument I keep seeing from people offended that I dare want someone brilliant rather than someone who promises to agree with me:

Second, even if you take seriously William F. Buckley’s line about preferring to be governed by the first 200 names in the Boston telephone book than by the Harvard faculty, the Supreme Court is not supposed to govern us. Being a Supreme Court justice ought to be a mind-numbingly tedious job suitable only for super-nerds trained in legal reasoning like John Roberts. Being on the Supreme Court isn’t like winning a “Best Employee of the Month” award. It’s a real job.

One website defending Bush’s choice of a graduate from an undistinguished law school complains that Miers’ critics “are playing the Democrats’ game,” claiming that the “GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness.” (In the sort of error that results from trying to sound “Ivy League” rather than being clear, that sentence uses the grammatically incorrect “which” instead of “that.” Websites defending the academically mediocre would be a lot more convincing without all the grammatical errors.)

Actually, all the intellectual firepower in the law is coming from conservatives right now – and thanks for noticing! Liberals got stuck trying to explain Roe vs. Wade and are still at work 30 years later trying to come up with a good argument.

But the main point is: Au contraire! It is conservatives defending Miers’ mediocre resume who are playing the Democrats’ game. Contrary to recent practice, the job of being a Supreme Court justice is not to be a philosopher-king. Only someone who buys into the liberals’ view of Supreme Court justices as philosopher-kings could hold legal training irrelevant to a job on the Supreme Court.

To be sure, if we were looking for philosopher-kings, an SMU law grad would probably be preferable to a graduate from an elite law school. But if we’re looking for lawyers with giant brains to memorize obscure legal cases and to compose clearly reasoned opinions about ERISA pre-emption, the doctrine of equivalents in patent law, limitation of liability in admiralty, and supplemental jurisdiction under Section 1367 – I think we want the nerd from an elite law school. Bush may as well appoint his chauffeur head of NASA as put Miers on the Supreme Court.

Ann Coulter, incidentally, graduated from the University of Michigan Law School, where she was on Law Review and a founding member of that school’s Federalist Society chapter, clerked for Judge Bowman on the Eighth Circuit, and began her post-clerkship career in the Honors Program at the Department of Justice.

— The Angry Clam

Does Harriet Miers Support Affirmative Action?

Filed under: Judiciary — Patterico @ 6:51 am

I have pointed out previously that those who say we should “trust Bush” on the Miers nomination seem to forget his position on certain issues. To cite a prominent example, the Bush Administration argued for affirmative action in the Supreme Court case of Grutter v. Bollinger.

You might be able to trust Bush to pick a pal that he thinks will carry out his political agenda. But even if he’s right, that’s not necessarily the same thing as picking someone who will be your idea of a judicial conservative.

This op-ed by John Yoo raises a specific (but undocumented) concern along these lines:

By all accounts, Miers distinguished herself as a loyal, dedicated and hard-working aide. But, according to press reports, she did not win a reputation as a forceful conservative on issues such as the administration’s position on stem cell research or affirmative action.

I wish Yoo would specify what press reports he is talking about. He doesn’t link them, and I can’t find them. In his diary, David Frum elaborates, similarly without documentation:

Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Frum does not say how he knows this. I believe Frum left the White House well before Grutter v. Bollinger was argued, and he doesn’t say that he heard specific discussions about this topic when he was in the White House.

But this issue is worth looking into further. If Yoo and Frum are right — and I stress if — then Miers may be a pick that would please Bush, but she is not one that should please judicial conservatives.

Miers could be Alberto Gonzales in a dress. We need to find out before she gets on the Court and starts issuing rulings.

If Yoo and Frum prove to be correct on this issue, I will be actively opposing this nominee.

Note well, however, that even if Miers turns out to have supported affirmative action, that will not cause the Beldars and Hewitts of the world to withdraw their support for Miers. I have already pointed out that both men announced their putative support for Gonzales even though they knew that Gonzales’s support of affirmative action was a matter of public record.

Another Bogus Argument for Miers

Filed under: General,Judiciary — Patterico @ 12:25 am

One argument I have heard in favor of Miers is that there will be time for the Luttig and McConnell appointments down the road.

To that I say: learn your history.

That argument is very similar to the one Ronald Reagan accepted when he nominated Sandra Day O’Connor, at a time when the Senate was controlled by Republicans and numerous aides were urging him to nominate Robert Bork. Instead, Reagan bowed to diversity politics and selected O’Connor. By the time Reagan finally nominated Bork, the Democrats had retaken the Senate, and Bork was defeated.

As a direct result, we still have Roe v. Wade on the books.

Haven’t you folks ever heard the phrase “strike while the iron is hot”? Do you think Republicans will maintain a majority in the Senate forever??

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