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.
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.
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.