Patterico's Pontifications


Would Luttig Get Confirmed if Miers Withdrew?

Filed under: Judiciary — Patterico @ 9:02 pm

There’s one very good reason for supporting the Miers nomination that I don’t think I’ve seen discussed anywhere else. That’s probably because supporters of the Miers nomination tend to be rabid Bush supporters, and this particular reason reflects quite badly on the President.

The reason is this: while I believe we could have taken a good run at confirming a Mike Luttig before this disastrous nomination, I’m not so sure we could do it now.

Before this nomination, we were coming off the Roberts nomination, which was a huge success primarily because of the high quality of the nominee. President Bush’s approval rating has certainly been stronger, but a Luttig nomination wouldn’t be about Bush, it would be about Luttig. It would be about the importance of judicial conservatism, and about another extremely bright and high-quality nominee.

With a 55-vote Republican majority, we could have afforded 5 net defections — and I don’t think that would have happened. Nor do I think that the Gang of 14 would have had the nerve to support a filibuster of an obviously qualified nominee such as Luttig. Absent a lightning bolt from the sky, I think Mike Luttig would have been confirmed.

But I’m not so sure he would be confirmed if Miers were to withdraw or be defeated — for two reasons.

First, while Bush could have gotten away with nominating a man to replace O’Connor, he would have a much harder time nominating a man after nominating and withdrawing Miers. Politically, it would look like the hard right pushing out a woman to get a man.

Second, and more important, if Miers does not become a Supreme Court Justice (whether by withdrawing her nomination or by a defeat in the Senate), that result will be attributed to the hard right. This means that the Gang of 14 would be emboldened to support a filibuster, where they wouldn’t have had the guts to do so before.

That’s because John McCain and Lindsey Graham, bless their self-righteous souls, love nothing better than to be seen standing up to the true conservatives in the Republican party. They actually seem to get a charge out of it.

After the vocal support Harriet Miers has received from Graham, I don’t think his ego would allow him to help squash a filibuster of her replacement, if it were a true conservative. He’s much better at telling people to “shut up” than he is in swallowing his pride in the way that would be required by a vote for the nuclear option.

In my mind’s eye, I can see McCain and Graham standing side by side at a press conference, their chests puffed out with self-important pride, as they explain why they voted to support the filibuster of Mike Luttig. They simply couldn’t stand by and watch the process hijacked by the hard right elements of the Republican party. Here was this fine woman, fully capable of serving well as a Justice, but prevented from doing so by the blinkered Philistines of the radical right — Bill Kristol, Charles Krauthammer, and some hard-core conservative blogger named Patterico or something. Well, we’re not going to stand for it. Blah blah blah.

You can see it as clearly as though it’s happening right now. Can’t you?

And if it happens, we will have the President to thank, because he will have given vain camerahounds like McCain and Graham this ready-made argument. It’s an argument that wouldn’t have been available if Bush had done the right thing and simply nominated Luttig right out of the gate. But he didn’t, and we’re stuck with this political situation: if Miers withdraws, we may not get someone like Luttig confirmed.

So, if I’m right . . . what to do?

I’d still say to go for it anyway. McCain hasn’t been punished enough for his participation in the Gang of 14, in my view, because its disastrous effects have flown under the radar screen. The Miers nomination may well have been attributable to the Gang of 14 sell-out, but we’ll never know for sure — or at least not until the first tell-all book hits the shelves. So, while the filibuster capitulation was a horrible betrayal of conservatives, this fact has not yet been made clear to grassroots conservatives.

But if McCain pulls a stunt like this, he can kiss off any chance of winning the primaries in 2008. If we take a run at Luttig and lose, we’ll squash McCain’s hopes for the Presidency, like a bug.

It would be worth it. And who knows? I could be wrong, and we could confirm Luttig. Better still.

Don’t get me wrong: this is still all a pipe dream, in my view. I think Harriet Miers will be confirmed, absent some unforeseen scandal. And I don’t expect that to happen.

But you can still plan for the dream. And I think it’s a dream worth dreaming.

20 Responses to “Would Luttig Get Confirmed if Miers Withdrew?”

  1. What you have to remember is that the nomination process is not a one shot affair. Withdraw Miers and put up Luttig (or Pryor or Owen or Garza) and have a fight.

    The Dems vote lock step only as long as they are not paying a political price. Then they cave. Put up one right after the other after the other. Let them filibuster all of them if they so desire. At what point do you think they will look like obstructionists that can’t stand anyone?

    Each vote is a vote against a constituency that makes he Dems seem more and more extreme and the President more and more conciliatory and rational–just never compromise on the quality of the nominee. Compromising on quality makes the President appear as he is, an unprincipled, feckless, coward.

    This isn’t that hard. I would win this in a month if I was in charge with a fine justice in place–pipeline the candidates (have them set up concurrently through the vetting and interview process). Overwhelm with numbers (of high quality)!

    Remember, you heard it here first.

    Paul Deignan (c95d69)

  2. Is this really Luttig’s Blog?

    And Miers’?

    I hope neither one of them are legit.

    Tillman (1cf529)

  3. Harriet Miers is a lock (barring a catastrophic revelation.

    Luttig can replace another one of the retiring/dead dinosaurs.

    Nice pic Paul on Patrick’s ads.

    Flap will await his wine for Thanksgiving.

    Hearings in November.

    Flap (cc77c4)

  4. I wouldn’t be so sure. Have you seen the tracking polls?

    Here is a link: Hugh and Harriet: Southward Bound

    Paul Deignan (c95d69)

  5. The clever way for Bush to abandon the Miers nomination while improving the chances of the replacement nominee might be to have her pledge to overturn Row v. Wade at the hearings. Dems and Rinos (not the Right) will block her and the replacement will then look more mainstream by comparison.

    whg (8c5b0e)

  6. John Fund thinks moving forward with Miers raises the possibility of all sorts of collateral damage to the President. Patterico said that these hearings will be about the President — that’s exactly why Fund thinks this nominee can lead to such problems, in particular, flyspecking the events surrounding the Texas Lottery Commission. According to Fund, one of the directors of that commission that was hired then fired while W was governor isn’t coming forward now because he’s bound by a confidentiality agreement, but that agreement wouldn’t prevent him from testifying if he were to receive a subpoena from the Senate Judiciary Committee. In no event should the President allow the hearings to become an excuse for a fishing expedition by the MSM and their Democrat lackeys. Maybe someone should leave Federalist #76 on the President’s desk.

    If Miers withdraws, the President should do what he should have done in the first place — nominate the judicial conservative that’s at the very top of the A list, whether that’s Luttig, McConnell, Brown . . . and then drop the gloves. But this needs to be done now, before the snowball the MSM party is trying to roll downhill gets moving.

    I have no confidence that any of this will happen. The Repubs now appear as inept as the Kerry campaign was in 04. It’s almost as if space aliens working with the Dems have kidnapped Rove and replaced his brain with the brain of Terry McAuliffe. It’s hard to believe that these are the same guys who set up Dan Rather.

    TNugent (6128b4)

  7. It is more difficult, but not at all hopeless, I don’t think. It’s well worth it to expose McCain and Graham. As much as they’d like to scuttle a Luttig nomination they would both pay a heavy price.

    McCain would have to choose between ending any hope of getting the nomination or virtually locking it up. Graham, whatever his presonal preferance is under tremendous perssure at home. If he fails to strongly support a Luttig and go nuclear if ncessarry he is very vulnerable to a primary challange, the more so because every any republican would be so heavilty favored in S.C.

    DeWine will deseperately need the base in next year’s of-year election in Ohio where the base is where they are already upset with him and the entire party. Finally Warner, again presonal preferances notwithstanding, cannot but strongly support and be willing to go nuclear for a nominee of this caliber from his state. That being the case we have roughly 50 – 52 votes (possibly including Spector though probably not Chafee of the Maine Twins).

    Finally, it may not be necessarry to go nuclea b.c red state dems like Pryor, Ben Nelso, Kend Conrad, possibly Byrd, Landreua and Bill Nelson will not be able to filibuster without cover of the Gang and some of them may feel pressured to actually vote for him. Of course they will feel the heat form their lunatic fringe base, but that will be their problem.

    More difficult thant before Miers. Certaintly. Still very possible though, and worth the effort.

    duras (8d0335)

  8. The nomination of Janice Rogers Brown to the Supreme Court is the best way to unify the Republican Party and energize the base for 2006 and 2008. Alas, it may never happen. Unfortunately, the Republicans have opted instead to pursue a strategy of stupidity and minority rule.

    Kevin (606aeb)

  9. Why JRB?

    She has the potential to be very fractitious, actually, since she’s spoken very highly of the decision in Lochner v. New York, and, honestly, I want none of that substantive due process shit, even if it comes up with policy decisions I’d approve of like Lochner.

    I’m not the only one.

    Angry Clam (fa7fff)

  10. Would a filibuster of Luttig be based his conservatism or his sex? If the latter, does that then make it easier for a Brown to get through?

    Also, I’m not sure how much the DEFEAT of Miers will be attributed to the “hard right” since Miers’ apparent ANTI-Roe views (see: Fund) are the latest controversy re her nom. If she gets defeated despite the impression that she’s just itching to overturn Roe (and done necessarily with some Republican “no” votes), how does that play into the “she was defeated by the hard right” theory?

    And I agree it’s easy to see McCain and Graham filibustering a Luttig, but that’s because their media whores and I can see them filibustering a a plate of mac and cheese if they thought it would get them on the news. That being said, they at least THINK they are principled–and I’m trying to see a principle that they would be advancing with a filibuster of Luttig.

    Christopher Cross (8e3b55)

  11. Deignan,

    You said, “Compromising on quality makes the President appear as he is, an unprincipled, feckless, coward.”

    What foolish nonsense. President Bush is none of those things. You should apologize. Why lie about the President of the United States like that? Are you nuts, or are you only trying to draw attention to yourself?

    Obviously, you’re on a campaign to plaster your picture on blog ads, but really your obsession with self promotion doesn’t require you to smear a truly great man.

    Now, I’m at odds with President Bush over the Miers nomination too. But, it is his decision with which I disagree, and that’s a much different thing than the viscous name calling you employ.

    Black Jack (ee9fe2)

  12. A scenario. You guys tell me how possible you think it is (not how likely it is, but how possible, which is something different; i.e. if you were pres., think you could pull it off?)

    1. HM uses platitudes to get past Specter.

    2. She then talks a really tough conservative line after that, saying things like “I wanna be just like Clarence Thomas”. She keeps this up steadily, never crossing the line, but the D base is aghast. It forces a fb.

    3. The RINOs at last vote nuke cuz they’re so p.o.’d at the D’s for fb’ing a candidate they promised not to, which made the deal-making RINOs look foolish.

    4. HM’s nomination is then withdrawn (perhaps even as part of a deal for the nuke option). Bush now nominates anyone that he really wants now, drawn from a full list of all qualified candidates, aot the limited “will not fb” list of Harry Reid.

    Frankly, I think the above is available. No guarantees, but an opening is there.

    Black Jack,

    Don’t worry about PD: nothing like a good j’accuse to get his woody up.

    You, I can argue with. Him, I’ve given up on, cuz he’s not into it for the argument; it’s about his need to condescend. Different people, different agendas.

    ras (f9de13)

  13. ras,

    You have a speculative mind, a good mind mind you, but somehow I sense you don’t drink enough, or have to get along with needy women. Something’s amiss, but I can’t put my finger on it quite yet. Keep poking holes in my posts and I’ll get a better read.

    Black Jack (ee9fe2)

  14. Black Jack,

    Well, I have cut back on my drinking of late; yes, I know there’s always a risk in that, so perhaps you have a pt. Or perhaps I need one.

    As for needy women – um, no comment. In theory it sounds great, but I’ll have to ask my wife first and see if I’m allowed. If you don’t hear back from me for a while, carry on.

    ras (f9de13)

  15. Cough, cough. I raised this point several days ago. See my sessions beating on Black Jack. The donkeys will bray like crazy (and have a lot more cover for it) if Meiers gets pulled now. And the White House is very much banking on us supporting them here. It’s like the “we’re in Iraq now, may as well finish it and back up the quarterback rather than switching leaders”*

    *I would never have voted for Kerry though…he’s just a weasel. Leiberman, now…

    TCO (d7c35a)

  16. Oh…and if we make McCain unelectable for the repugs, he will bolt and run with the demos. With Shrill or with Joe.

    I mean if Morris can have Condi picking a democrat as her running mate, what’s to stop her opponent?

    TCO (d7c35a)

  17. […] Washington Post: Jim Jordan, a former presidential campaign manager for Sen. John F. Kerry (Mass.), agrees that Democrats will have plenty of reasons to oppose Miers, but he said some worry that Bush might replace her with a more forceful and effective conservative. “Even though she’s undoubtedly a mediocrity,” he said, “philosophically she’s probably the best they [Democrats] can do.” The second worst thing about the Miers nomination (the worst being that this joke nominee could possibly get life tenure on the nation’s highest Court) is that by nominating such as Miers, the President has catastrophically lowered the bar for future nominees. The bar may be so low, in fact, that truly qualified judicial conservatives (like Michael Luttig, for example), may have trouble limboing under it. […]

    The Trigger » Out of the Mouths of Dems (e72e64)

  18. If you think that even a single Democrat out of the Gang of Fourteen would have failed to find Luttig an “extraordinary circumstance,” I strongly disagree. Maybe 51 or 52 Republicans would have voted for cloture, but If you think as many as 48 Republicans would have voted for the Nuclear Option on a Luttig nominee, I strongly disagree.

    Since the Gang of Fourteen’s deal, the only reason for nominating Luttig or Jones would have been if the President wanted the nomination blocked by a filibuster.

    If Dubya’d picked Jones, he couldn’t have gotten as many as 45 Republican votes for cloture, and not a single Democrat.

    The most dismissive insult Lyndon Johnson could ever level against another senator when LBJ was in the Senate was: “That poor sum-bitch can’t even count.” Meaning that he had no clue how the voting was going to line up, couldn’t even figure out who his own supporters were. LBJ, by contrast, didn’t always win, but he always, always knew what the vote was going to be. You and I don’t have the kind of inside access that the Administration has, but so far this Administration’s shown a fairly good ability to count. It can’t talk about that, of course: You don’t broadcast your weaknesses. But even from what’s in the public domain, I think you’re way, way overestimating the party’s post-Gang strength.

    Beldar (f0e75d)

  19. By the way, Roberts’ final confirmation vote was exactly half-way between the high and low ranges I predicted. 🙂

    Beldar (f0e75d)

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