Much as I hate to admit my own failings, I was just as blindsided to the apparent forcefullness of the conservative blogosphere's opposition to the Miers nomination as it seems was the White House. What I had expected, honestly, was a reaction similar in nature to the Roberts nomination, albeit with a higher level of scrutiny due to her smaller record. Silly, silly me...
Here we are now, a scant week after that fateful announcement, and it feels as if the world has spun upside down. Even the president's most ardent defenders have nearly taken to arms over his choice, while a quick scan of the conservative punditry leaves one wondering whether they are reading the National Review or the Democratic Underground. Speaking of which, the fringe Democrats really ought to be taking notes now, as their conservative counterparts have tapped an astonishing wellspring of intellect to find many new and linguistically inventive ways of calling Bush a moron. Sad, really...I'd hoped that Republicans would have done more than simply apply a thicker veneer of civility to their growing distaste for all things Dubya.
Was it a bad choice, though? Considering the depth of the rift developing among many of the Republican party base, I believe the aftermath of the nomination provides more than enough answer to the question when taken as a whole. However, more importantly ignoring our 20/20 hindsight and considering the factors known only at the time, was it a bad choice? Was this nothing more than the crowning absurdity of the president's wallowing in such nonsense? As with many questions, the answer is a simple word with rather complicated nuances. Maybe. Why maybe, I hear you ask. Well, that is due to a matter of perceptions and judgement. By what criteria does one answer the question? On exactly what merits will one judge the nomination, and the character of the person being nominated? Are we judging Miers, Bush, those who have been on the court compared to Miers, those who could have been on the court compared to Miers?
Let us put aside the issue of legal requirements, simply because by a quick read of the Constitution, legally all one really needs to be nominated a justice is to be selected by the President. So let us move on to the ground of the less firm. As many of those opposed to Miers stand ready to point out, and even I am more than willing to admit, not even the most potent orator could persuade the public that Miers is the living heir to Rehnquists efficient management, nor blessed with the wizened pen of Scalia. Is that, though, a valid criteria for the Supreme Court? I suspect one must give some deference to the highest court of the land with regards to what is required of potential applications. But does a silver tongue and learned pen equate to competence when dealing with the law? Nor does she seem to have much experience in dealing with cases specific to heady constitutional issues. But, how much of the Supreme Court docket is composed of specific constitutional issues? I believe almost anyone would admit that a solid, working knowledge of the law and the US Constitution a valid criteria for consideration for nomination to the Supreme Court. After 30+ years of practice, it is highly likely that Miers does have a deep, solid understanding of the law. On the question of the Constitution, however....that I believe is a valid question, and one which unfortunately at this time has no answer.
Neither can it be said that her posterior has even once graced the bench, nor her shoulders been adorned by the robes of a court of law. Surely, one would suspect, a person nominated to the "highest court of the land" should be well versed in the running of a judicial bench? I must admit that my own analysis of this 'criteria' leaves me with two serious pieces of outright humor. The first laugh comes from this criteria being one which would have the supporter of it place themselves against the nomination of former Chief Justice William Rehnquist. He was plucked by Nixon in 1971 from the Office of Legal Affairs, where he served as Assistant Attorney General. Obviously nothing more than a Nixon crony with no understanding of the operating of a high court! The second I believe was summed up perfectly by the keen wit of Varifrank (gotta trust anyone named Frank!), in speaking about the Miers nomination:
In my opinion, Justice Breyers is a dangerous man, not be cause he’s unqualified, but because despite of all his legal background, he doesn’t have the common sense that God gives dogs to figure out how dangerous that idea is, and yet, he manages to have a seat on the top court of the land. Justice Breyers’ ideas of “flexible truths” are what some people would say are a fine idea from a fine legal mind, but I think its dangerous, and hey, some people who oppose Mrs. Miers also think he is much more qualified than she is but for goodness sake, this pack of qualified super smart overqualified Harvard grads that makes up the current Supreme Court just passed “Kelo”!
Several of the more 'relativist' judges on the Supreme Court, the type opponents of Miers so desperately wish to avoid, possessed many years of experience on the bench. One could even say they have spent much time as part of the judiciary contemplating the Constitution and the various legal theories surrounding it. Of course, I doubt any of the Miers opponents who support this criteria would wish another Sandra Day O'Connor, Anothony Kennedy, or David Souter.
What of external factors? Since we are judging not just the person selected but the nomination in and of itself (not to mention some outright insulting Bush over it), should we look at those factors influencing the process? Are they relevant to the President selecting Miers, even lauding her as a top candidate? Without a doubt, those are factors that must be considered in evaluating that decision. That belief is in my mind strengthened in part by the impractical refusal of those opposing Miers to seriously entertain the possibility of certain factors that are destined to have an effect on the nomination. We are, of course, speaking of the United States Senate, that august body delegated the responsibility of providing advice and consent to Presidential nominations.
Simple logic dictates that the temperature of the Senate was a serious factor in selecting both Miers AND Roberts as potential Supreme Court ustices. Why, it must be asked, was Bush so concerned about the ubiquitous 'paper-trail', lack of which being touted as almost a virtue for both nominations? The answer to that question lies I believe some five months previous, with a group known as the Gang of 14. Seven Republican senators, at the behest of nothing but their own ego, betrayed their Party and brokered a 'compromise deal' with the Democrats that forestalled the 'nuclear option', granted votes to several judicial nominees, and left more than one hanging in the wind. With only a 5 seat majority in the senate, these 7 found themselves in a position of power over their own party. With the margin being so slim (not to mention this being the selelection of SECOND Supreme Court justice for Bush), and several of the short listed nominations being previously filibustered, the fraudulent seven could definitely represent a deadly obstruction to the nomination. But would they be a factor? And would the 'nuclear option' be necessary for a more papered and conservative nomination?
Those opposing Miers would profess that they are not. From John Hawkins dismissal of both the possibility of their interference and the Democratic filibuster in a re-nomination what-if scenario:
...but the Democrats aren't happy. There is even some talk of a filibuster. But, after just seeing the terrible "wrath of conservatives scorned" over the Miers' nomination, Republican members of the "Gang of 14" become terrified of the consequences of a vote against the nuclear option. John McCain understands that going the wrong way means his presidential campaign in 2008 is doomed. Mike DeWine knows he'll lose his Senate seat if he votes with the Democrats. Lincoln Chaffee has a tough primary coming up and he knows going the wrong way means defeat. Lindsey Graham, who has already been stung by criticism over his role in the "Gang of 14" deal, doesn't want a repeat performance.
to David Frum's continued evasions when questioned by Hugh Hewitt:
HH: All right. Now my second question goes to...you said he was in the position to get them confirmed. I'm still curious of the Gang of 7. Which do you, plus eight, really, if you count Specter, whose not part of the Gang of 7. Which 6 are you absolutely confident of, because we need to have 50 votes, plus the vice president to confirm anyone that we would want, even though that might be a bad idea in some circumstances. Which ones are you confident of coming back to the fold?
DF: Two points. One is I think the filibuster deal was a good deal, and I think it worked for the Republicans, and we saw that with Roberts. But second, Hugh, I think we're going to discover Harriet Miers is the toughest confirmation. I don't think she's going to win, and if she does win, it's going to be after a horrific and expensive and costly political fight for the president.
HH: But I have to press you, David, because the assertion that he could have won with Luttig or McConnell is central here. I don't think they had the votes to get one of my top three. I think that what happened was a calculation, that they had to go with the best choice that they knew was acceptable, and so there's a disagreement here. I just want to know...
DF: You know, I think on that factual point, I think you're wrong. I don't think there was a calculation. Actually, I think this was a very impulsive decision.
HH: Again, I'm going back, David. I'm pushing you on the Senators.
DF: And because the vice president...look, the vice president has been under surgery. Karl Rove has been distracted by this stupid and unfair inquiry, but he's been distracted, and he's also had medical troubles. So who was making this decision? It wasn't Karl, and it wasn't the vice president. It was Andy Card and the first lady, and the president, and Condoleezza Rice.
HH: You're taking me out on a limb, David. I'm not going to go with you. I mean, that's a big limb. But before we go down that limb, just name for me the Gang of 7 who would come back to the fold for McConnell or Luttig.
DF: Sorry. But the Gang of 7, the filibuster problem, is a two-stage problem. The first question is do we believe that if the president had nominated a Michael McConnell or a Luttig or a Priscilla Owens or a lot of other people, that the Democrats would have filibustered. Would they have violated the deal to filibuster? I don't believe they would.
HH: And I believe they would have, absolutely.
DF: They didn't filibuster John Roberts.
HH: They had no choice with their base.
DF: But if they had, if they had, the president's got...there's 55 Republican Senators. There are probably 51 reliable, and then there at least one or two Democrats. And...but I think what happened here is he got forced not to what people think of as his third choice, or his fourth choice. This is nobody's choice, and I think that the political damage that the president has done himself here is so enormous.
HH: David, I'm going to go back, though. I'm trying to be a reporter, because I really am curious about this. Would you agree with me that Specter and Chafee and the two Maine ladies are not reliable votes?
DF: Chafee is not, and the Senators from Maine are not reliable. I'll agree with you there.
HH: And Specter?
DF: Specter is troublesome, but not hopeless.
HH: But possibly of going the wrong way, correct?
DF: Possible. Absolutely.
HH: So we're down to 51. If we lose two more, Democrats could conceivably enforce party loyalty.
DF: It's conceivable.
HH: So is McCain going to vote for whoever Bush sends up?
DF: Not for whoever, but the right nominee? Yes.
So not only is the influence Gang of 14 marginalized, but the opposition fails to even seriously consider the possibility of a Democratic filibuster. As if, simply by the awe and power of a strict constructionist, the Senate would be forced to acquiesce. Champagne would fall from the heavens. Doors would open. Velvet ropes would part. Let us leave the realm of subjective fantasy and return to the cold reality...
Lincoln Chafee, who confirmed Roberts depsite his concerns that Roberts would vote to restrict abortion rights, is facing pressure from NARAL over his decision, which could seriously threaten his 2006 campaign
“Given our recent conversations with Senator Chafee, this vote is surprising and extremely disappointing,” Keegan said in the release. “We’d like to know what pressure the Republican leadership put on him. We will be watching closely his future votes on judicial nominees, including William Pryor and those for the Supreme Court.”
Olympia Snowe, in her decision document on the nomination of John Roberts, listed her "threshold qualifications" for a Justice of the Supreme Court. Those four include such penumbras as a respect of the right to privacy (read: abortion), respect for Court precedent and the stability of stare decis (Roe v. Wade perhaps?), and of course:
And he responded to Senator Specter that Roe is “settled as a precedent of the court, entitled to respect under principles of stare decisis. And those principles, applied in the Casey case, explain when cases should be revisited and when they should not. And it is settled as a precedent of the court, yes
Susan Collins, also a friend of the pro-choice movement, also plays the 'stare decis' card with a veiled reference:
At our meeting, I asked Judge Roberts about his views regarding the importance of stare decisis – the principle that courts should adhere to the law set forth in previously decided cases. I asked Judge Roberts whether a judge should follow precedent, even if he believed that the original case was incorrectly decided in the first instance. He told me that overruling a case is a “jolt to the legal system” and said that it is not enough that a judge may think a prior case was wrongly decided. He emphasized the importance that adherence to precedent plays in promoting evenhandedness, fairness, stability and predictability in the law.
And that after only 10 minutes of research. I will grant you that it is impossible to say that they would buckle under the pressure of their supporters and constituency in a Supreme Court nomination vote, but the corollary of that also remains true. It is impossible to say that they would resist such pressure, and thus to patently assume that to be the case would be a very dangerous position to take. Of the three who are facing re-election in 2006, only Michael DeWine is facing serious competition, so the effects of the '06 elections on their choices are minimal at best....except in the case of Chafee and Snowe, where their support from the abortion lobby could factor heavily. One must also ask, has the fact that none of the seven have been truly and effectively reprimanded for their double-cross of the party had an effect on their outlook? The near pride with which many wear their membership in the 14 I believe provides all the answer necessary to that question. As I said earlier, I believe the lack of concern over this issue strengthens my position that the external factors ARE important to considering the nomination. To my mind it is analogous to Bush asking his supports to 'trust him' on the Miers nomination.
Thanks in part to the 7 Republicans in the Gang of 14, the 5 seat "on paper" majority in the Senate is just that, on paper only. The President could not reliably count on their support for a staunch conservative nomination, to the point that several have expressed opposition to the nomination of such "ideologues". Without that surety of support, there exists a rather strong possibility that the nomination could result in a Senate bloodbath. Combine the near inevitability of a Democratic filibuster with the strong possibility of a weakened Republican base failing to muster enough votes for the nuclear option, and the result would not only be a stalled nomination, but the further decline of Republican party influence. I firmly believe the condition of the Senate had a great amount of influence on Bush choosing Miers. Nominating a staunch conservative would be a gamble in and of itself due to the filibuster, but to do so when Republican Party support was in question, and the whispers of 'lame duck' already beginning to make the rounds.....many have criticized Bush as weak, spineless, and cowardly for making this choice. To that I can only respond: It is far easier to demand that someone else fall on their own sword...
I won't even bother to address the 'Democrats won't filibuster' canard in great detail. When you consider that almost half the desired 'short-list' has been filibustered for lower court nominations, and the 'extraordinary circumstances' clause of the Nomination Compromise...if you truly believe the Democrats would fail to find extraordinary circumstances in the likes of, say, William "I believe that not only is [Roe] unsupported by the text and structure of the Constitution, but it has led to a morally wrong result. It has led to the slaughter of millions of innocent unborn children" Pryor...
These issues are what make the Miers nomination so difficult to, pardon the pun, judge. There are indeed several important and unanswered questions involving her capability to serve on the Supreme Court. As much as I respect many of the people lining up against the Miers nomination, their near Kos-ian disdain for Bush, the capriciousness with which they consider the politics of the Senate, and their continued judgement of Miers based not on her own merits but on who she is not, brings too much to question for me to completely accept their positions. I would agree that there are nominees who would not have such questions regarding their ability, but the opposition feels neither the need nor the interest to prove that those persons would survive the Senate. I believe their desire that Miers be denied even the ability to stand as witness on her own behalf also calls into question motives...
Nor do I hold Bush as having sole 'blame' for this fiasco. A decision was made predicated on the support of the Senate. Nor can I find blame for him in employing that logic. The effects of a stalled Senate nomination would, in the long term, be more catastrophic to the party, and to the possible future Supreme Court nominations Bush might have to make, than the current kerfuffle. My ire is generally reserved for the 7 Republicans who, in snatching defeat from the jaws of victory, turned a 55 seat majority into a deadlock. Bush did nothing more than worked with the conditions he was given.
I believe the question of the nomination, as it was originally placed by President Bush, is truly all about trust. On one side we have Bush with hat in hand, asking his Party and people to trust in his judgement. Truly a difficult proposal as many of his more recent policy positions have left staunch conservatives with a rather poor taste. However on the other side, those wishing Miers to either step down or be shot down, are also standing with hat in hand, asking for the President and his supporters to trust....not in them, but in seven people. John McCain. Lindsey Graham. John Warner. Olympia Snowe. Susan Collins. Michael DeWine. Lincoln Chafee. The Republican half of the 'Gang of 14' who so infamously derailed the 'nuclear option' back in May of this year, ironically enough over several court nominees whom the Miers opposition would much rather see in her place. I honestly do not know whether or not I should trust Bush. However, I know for damn sure I can't trust those seven as far as I could throw them, and there's a compromise document in Congressional record as proof of that.
And so we are left with a rift in the party. On the right we have the Coalition of the Illin, marshalled in stiff and unyielding opposition to Myers. On the left, the Coalition of the Chillin, trusting Bush to know what he is doing. Myself....I'm NOT happy with this choice. While I do not expect her to become the next Souter, there are too many questions about her to elicit my own endorsement. However....due in part to this dearth of information, I am not willing to oppose her without giving her the ability to present her case (bad pun!), nor am I going to judge her based solely on my own wishes for a nomination pick. She must stand, or fall, on her own merits. I guess that places me with:
