Patterico's Pontifications

10/6/2005

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??

18 Responses to “Another Bogus Argument for Miers”

  1. It’s worst than Reagan. If Miers is confirmed, then the next nominee is Alberto Gonzales, a pro-choice, affirmative-action justice.

    jd watson (e27eeb)

  2. I believe I mentioned that possibility, but you’re right. If everything that is going south with BushCo right now doesn’t somehow turn around soon, the republicans will loose their majority in the next election.

    Maybe I was giving Rove too much credit. He seems to be “shrewd” but his strategies are more simply straightforward instead of intricate (as Kevin Drum points out). The hype that Rove is a political genius is just not viable.

    Tillman (1cf529)

  3. More importantly, we won’t have the presidency forever. My guess is the next POTUS is a Dem. This may be our last SCOTUS appointment for a very long time.

    Dwilkers (a1687a)

  4. Bush has ruined the GOP. The grass roots will stay home in 2006 and 2008. Only the Dems’ self-destructiveness can save our party now.

    IB Bill (a3b757)

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

    I thought she wasn’t a swing vote.

    actus (c9e62e)

  6. She isn’t currently.

    However, back when Planned Parenthood v. Casey was decided in 1992, she was.

    The Court has changed since then, with the retirement of Justice White, who was in dissent in that case, and his replacement by Ruth Bader Ginsburg.

    Angry Clam (fa7fff)

  7. Clam, Patterico keeps arguing that there is not just a one person swing vote on Roe. So, if that is true, then Miers can’t be the deciding vote.

    Tillman (1cf529)

  8. Re-read the post.

    It says “If Bork before O’Connor.”

    If that were the case, and O’Connor came in the slot Bork went up for, the lineup on the Court in Casey would have been:

    Rehnquist, White, Blackmun, Stevens, Bork, Scalia, O’Connor, Thomas, Souter.

    That creates, instead of the pro-Roe 5-4 majority that showed up, a 5-4 anti-Roe majority of Rehnquist, White, Bork, Scalia, and Thomas.

    However, that’s not what happened. Kennedy got on the Court instead of Bork, making the court 5-4 pro-Roe at the time of Casey. That’s Patterico’s point.

    However, White, an anti-Roe Justice, retired, and was replaced by a pro-Roe Justice, making the pro-Roe majority on the Court 6-3. Roberts for Rehnquist at the least preserves this at 6-3, and could possibly expand it to 7-2. As a result, O’Connor is no longer the swing seat, and her replacement is not the deciding vote.

    If Stevens or Ginsburg bails, that seat will be the deciding vote.

    Angry Clam (fa7fff)

  9. Edit: “will be the deciding vote” if Miers turns out to be a reliable anti-Roe vote, a fact not yet proven.

    Angry Clam (fa7fff)

  10. Edit x2: Roberts too. Goddamn, it’s early for me.

    Angry Clam (fa7fff)

  11. If I recall correctly Reagan had pledged, while campaigning, to appoint a woman to the first Supreme Court vacancy. So I don’t think Bork was a real possibility.

    James B. Shearer (fc887e)

  12. One of the problems with “what ifs” is that you can’t just change one thing. Had Reagan appointed Bork in 81 (highly desirable) then the pressure to appoint a woman when an opening occurred in 86 would have been all the greater. The real world Reagan proved unable to resist the pressure in 81 as it was. Perhaps he would have named Scalia in 86 nonetheless. Or maybe not. Or maybe he would have named a woman in 86 and Scalia in 87 and maybe it would have been Scalia who got Borked. Who knows. Ideally Reagan would have named 4 strong conservatives for his 4 vacancies/promotions. But Republican presidents have seldom proved to be ideal when it comes to high court appointments perhaps leading to the fondness conservatives have for “what ifs” when it comes to high court vacancies.

    fritz (395674)

  13. I agree that one can’t count on having further chances. That by itself is not a persuasive argument in favor of Ms. Miers.

    If, on the other hand, the President came to the conclusion that he would not have been able to marshall sufficient votes to effect the Nuclear Option to defeat the certain filibuster that would have faced, say, Luttig or Jones, and that they were therefore unconfirmable; and if he concluded that Ms. Miers was indeed relatively more confirmable, that would certainly help explain his choice of her over them, even if one doesn’t think those factors actually justified it.

    (If that was indeed the President’s calculation, then the tragic moment occurred back when the Gang made its unholy deal. I was always in favor of forcing the Nuclear Option on one of those Circuit Judge nominees, preferably Pryor or Owen, precisely because I thought it would give the President a free hand for SCOTUS nominees, one he may now lack, or thinks he lacks. My guess is that in fact, the President and his political advisers were simply unsure whether they could get a Luttig or Jones confirmed, and that while not determinative of itself, that nevertheless played some important role in prompting them to consider other approaches, which in turn made an alternative like Ms. Miers suddenly more interesting to them.)

    Regardless, reasonable arguments can be made that it would be a good or a bad thing to go ahead and soak the Senate carpets with blood right now. Instead, it appears that we’ll have the Oval Office carpet soaked with blood. I think in the end, that won’t be as terrible as it might seem now — that carpet is already pretty stained, although certainly it’s been cleaned up considerably by the current occupant of the Oval Office after the mess the last one left.

    My own plan in the meantime is to try to stay as calm as I can, avoid getting too badly splashed (although that’s probably inevitable), and try not to make any permanent enemies (e.g., by overindulging in finger-shaking or telling other conservatives that they ought to shut up).

    Beldar (c4af44)

  14. My own plan in the meantime is to try to stay as calm as I can, avoid getting too badly splashed (although that’s probably inevitable), and try not to make any permanent enemies (e.g., by overindulging in finger-shaking or telling other conservatives that they ought to shut up).

    Beldar,

    The “shut up” business is Lindsey Graham’s specialty. I hope (and assume) that you don’t think that I am finger-shaking at you in a way that would make you a permanent enemy, or even a temporary one.

    Patterico (4e4b70)

  15. The Clamster said:

    It says “If Bork before O’Connor.”

    If that were the case, and O’Connor came in the slot Bork went up for, the lineup on the Court in Casey would have been:

    Rehnquist, White, Blackmun, Stevens, Bork, Scalia, O’Connor, Thomas, Souter.

    Uhhh, it does? Absent the later Bork nomination, we might not have gotten David Souter.

    There is another significant flaw in your thinking. Robert Bork was passed over not just for the O’Connor nomination, but for the Scalia nomination as well. Presient Reagan wanted to appeal to the Italian vote, and the feeling was that they “could get Bork anytime.” If your argument is that we lost Mr Bork on the Supreme Court because of the earlier nomination of Mrs O’Connor, you have to say the same thing about the nomination of Antonin Scalia. Mr Scalia was nominated and confirmed in 1986, when we still had a Republican majority in the Senate. Had Mr Scalia been pushed back until 1987, and a Democratic Senate, looking back on the barely confirmed Justice Bork, would we have lost Justice Scalia?

    There are simply way to many “ifs” that could have occurred had things been done differently to state, almost categorically, that Roe v Wade would have been overturned in Casey had President Reagan nominated Judge Bork first.

    Dana R. Pico (a071ac)

  16. Oops! I responded to the Aggitated Mollusk before reading all of the responses, and said (though somewhat more verbosely) the same thing as Fritz.

    Dana R. Pico (a071ac)

  17. I didn’t make the argument. I explained it.

    Angry Clam (a7c6b1)

  18. This site has the list of the 41 Supreme Court Justices who were not previously judges when confirmed onto the Supreme Court.

    As I looked at that list, especially the thirteen nominated since the beginning of the Franklin Roosevelt administration, one thing struck me: with the exception of Earl Warren, the justices nominated appear to have stayed closer to the political philosophy of the presidents who nominated them than those selected from the ranks of existing judges.

    That’s a bit skewed, since 10 of the 13 were nominated by Democrats: they wound up, exclusively, moderate to liberal. The three nominated by Republicans (moderate Republicans, it should be noted) stayed moderate to conservative.

    Justice Thomas was another mostly political appointee: he had served only two years as a judge, and his rise to fame was completely apart from his judicial experience. Chief Justice Roberts, though not as widely known as Mr Thomas, had little judicial experience. Even the most brilliant Justice, Antonin Scalia, served only four years as a lower court judge; most of his service was in the political realm.

    If we consider those three in the same light as those who never held judicial positions previously, it seems pretty obvious that mostly political appointments, rather than plucking from extensive judicial backgrounds, results in Justices who more closely hold to their original political positions.

    Looked at that way, I’d think that conservatives might be less disappointed by Miss Miers’ nomination.

    Dana R. Pico (a071ac)


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