Centerfield

I thought this quote was rich.

Senate Democratic Leader Harry Reid, who said he had recommended that Bush nominate Miers, blamed "the radical right wing of the Republican Party" for killing her nomination.
"Apparently, Ms. Miers did not satisfy those who want to pack the Supreme Court with rigid ideologues," the Nevada Democrat said

"They" pushed her in (and I watched her drown). Aren't "they" awful.

Posted by: c3 at October 27, 2005 10:17 AM

Oh yeah, sorry Tully, all that wasted popcorn.

Posted by: c3 at October 27, 2005 10:18 AM

If Bush wants to avoid the 3-act play scenario, perhaps we can expect a lengthy period of floating of trial balloons. IMO, Bush would be smart to talk to a variety of legal minds in interviews where such people came in through the front door at high noon, and the only public comment by the admin was that Bush was consulting, looking for input, etc. Doing this like a one-a-day would lead to the blogospheric punditocracy exhausting itself with daily speculation that the admin could use as public feedback before anouncing whichever candidate seems to have the broadest acceptability and the least vociferous negatives.

Posted by: bk at October 27, 2005 10:28 AM

I'm pleased that she was withdrawn.

Posted by: Daniel at October 27, 2005 11:02 AM

Nothing better to get any Plame indictments out of the news cycle than nominating a Supreme Court Justice, especially a controversial one.

Posted by: The Jaded JD at October 27, 2005 11:13 AM

The question now is:
- Does Bush go with someone who will be loved by the very conservative, who objected to Miers on ideological purity grounds?
- Does he go with someone like Roberts, who is obviously competent, but _not_ particularly beloved of the very conservative? Just to thumb his nose at those who (as he doubtless sees it) betrayed him.
I'd give at least a slight edge to Plan B. Just on the basis of character and track record.

Posted by: wj at October 27, 2005 11:17 AM

There is so much hypocrisy coming down (surprise, surprise). The Democrats seem to be adopting Miers because the right opposed her. Yet, a lot of Democrats had a lot of the same doubts about her credentials (or lack thereof) that conservatives had. Whatever your thoughts about Miers, she was sort of a weird pick in today's environment, where resume counts for so much, especially among Democrats. In any other circumstance, Democrats would have been all over this nomination. Now they have something to beat the conservatives over the head with, so she becomes more acceptable, ie, the enemy of my enemy is my friend kind of thing.

The whole process has become so partisan that it's impossible to have any kind of rational debate on what constitutes a good Supreme Court justice. Personally, I thought Miers was a bad nominee in today's environment--it shrieked of cronyism and anti-intellectualism (which might be unfair to Miers because I'm sure she is a very smart woman.) But it's even worse that some of the Democrats and the feminists are now seemingly getting on Miers' bandwagon to bash the conservatives.

I think wi is right; he will go for another Roberts-type. Janice Rogers Brown would create more trouble than he is willing to entertain. The nominee will probably be conservative enough to keep the right on board, but not so blatantly partisan (a la Scalia or Brown) as to give the Democrats a real opening.

I don't think Bush can afford to thumb his nose at the conservatives because he has no one else in his corner now. At this point in the administration, he is becoming a lame duck with the looming elections, even disregarding his problematic poll numbers. I just can't see him saying to hell with the conservatives if he wants to have any hope of salvaging the remainder of his administration.

Posted by: Marc at October 27, 2005 11:38 AM

The President will nominate a solid conservative like Luttig at this point. But he will hand over the confirmation reins to the Senate conservatives. His message to them will be, you wanted this candidate, YOU get him confirmed.

If they get through, fine, the base is happy, the President has won a fight, etc. If the nomination is killed, then the conservatives have an electoral issue for next fall's Senate races. The president then nominates a Roberts or even a Gonzales and the right wing of the Senate will have no choice but to shut up, since the Republican majority in the Senate has been proven unable to break the filibuster. And the conservative pundits will have to moan about the spineless Senate again, taking conservative heat off President Bush.

Posted by: PatHMV at October 27, 2005 12:37 PM

First of all, I think we should expect the White House to move very quickly on naming a replacement nominee. I'm sure they considered a number of candidates before selecting Miers and, during the process, had their own vetting process. With indictments of Libby and Rove likely to come down within the next few days, they will undoubtedly want to steer the conversation in another direction, and having a new nominee front-and-center is a perfect way to do that.

As far a who he choose, I have very strong feelings. Bush should appoint a proven, experienced judge who shares his judicial philosophy vis-a-vis the Constitution, i.e. strict construction. Period. The question of where a particular nominee stands on political issues, specifically abortion, should have absolutely no bearing on this decision. The vetting and confirmation process should, likewise, leave politcal opinions out of the discussion. Whether I agree with him and the manner in which he's handled his job or not, President Bush has the right to appoint Justices of his choosing. The Senate must look at the nominee's qualifications and character (where appropriate) to determine fitness for the position, and not focus on political ideology. If the nominee passes muster on these questions and these alone, then the individual should be confirmed.

Thanks to the efforts of my great, great, great, etc., grandfather (our 3rd Chief Justice), the Supreme Court of the United States holds an equal and vital position in our federal system. It is called on to review the constitutionality of legislation and to keep our legislators and executives honest in writing and upholding the laws under which we are gorverned. It is not called on to write legislation or to allow the political or ideological leanings of its members to jeapordize the balance we need.

Here's hoping that the President nominates a qualified justice who will focus on our Constitution and offer thoughtful decisions based on the beliefs of our forefathers and not on the whims of political parties or special interest groups.

Posted by: Mitch Cumstein at October 27, 2005 12:38 PM

Mitch! How long have you been sneaking over here to Centerfield?

Posted by: The Jaded JD at October 27, 2005 01:01 PM

Mitch, does this mean that you think that if a current SCOTUS justice believes a previous SCOTUS incorrectly divined our forefathers' intents, he is free to overrule previous decisions simply on the basis that "the forefathers didn't mean x, they meant y."

If your answer to this question is yes, perhaps you'd also like to
tell us whether you also think that this means that say, 10 years further down the road, a new SCOTUS could then rule "yes they did mean x, they did NOT mean y."

And then maybe you could explain to us why you are so very certain that the divination of original intent is far more important than precedent and legal stability.

Posted by: bk at October 27, 2005 01:05 PM

looks like I was wrong about B'rer Miers although for a while it seemed like that was what was going on.
Krauthammer had the timeline right - make a little controversy over documents, call it an impasse, then Miers withdraws to spare the nation some unecessary sturm and drang.

Posted by: Marcus at October 27, 2005 02:39 PM

Why not consider ideology? After all, would you want a nominee who's judicial philosophy, vis-a-vis the Constitution, is strict construction, but also believes in genocide for all men who wear toupees? If he never actually advocated executing toupee wears out side the law he is still a nut job.

At one point in American history fascism was considered mainstream "political opinion". (AKA: Huey Long) But just try getting one on Supreme Court today.

Posted by: Bob J Young at October 27, 2005 02:40 PM

I didn't expect her to withdraw until the Judiciary Committee had beat up on her for a bit.

Posted by: Tully at October 27, 2005 03:01 PM

We'll see what tomorrow's headlines are, but if it ain't good, look for Janice Rogers Brown to get the nod. How could the Dems possibly focus on indictments with a Brown nomination?

Posted by: AR at October 27, 2005 03:03 PM

The Democrats don't have to focus on the possible indictments, the Republicans do for damage control because count on Fitzgerald to be very detailed.
Rove's lawyer is apparently in negotiations, Fitsgerald has leased some office space and there's buss about another grand jury to look into the forged Niger documents themselves.
If Bush put forth Brown the vote would likely be filibustered and don't count on the GOP to have the stomach to break something they may sorely need in 2007.

Posted by: Marcus at October 27, 2005 03:14 PM

I couldn't disagree more with the idea that the president has the right to appoint the justices of his choice and the Senate has no role but to examine their "qualifications." Justices usually serve 25-30 years. Why should a president, who serves two terms at most, have the right to influence the Supreme Court for decades, long after the popularity of that president's politics may have vanished? I think the Senate should look at judicial philosophy--it's a more difficult question as to whether they should examine the nominee's personal ideology, but I think the Senate has every right to reject someone that it considers too extreme. While the president's nominees might deserve some deference, I can't see the rationale for allowing a particular president's "dead hand" from ruling the court for decades. And I would say this whether the president was liberal or conservative.

I'm not even going to get into the question of why a justice should try to blindly reflect the views of the founding fathers (if they can even be ascertained)without taking any account of societal changes.

Posted by: Marc at October 27, 2005 03:19 PM

JD:

Actually, this is my first time here. I saw your reference on Waldo's blog and thought I'd check it out, being a centrist myself.

BK:

Please don't mistake my statements to mean that I am a "strict constructionist." I'm not. I simply believe that the President should nominate someone who shares his (or her) judicial philosophy instead of having issue-based ltmus tests. For myself, I view the Constitution as a "living" document. The general guidelines make for a great point of reference, but does anyone really think that our forefathers had issues like partial-birth abortion or stem-cell research when they crafted this document? I believe that "precedent and legal stability" are more important than "original intent." The fact that Mr. Bush disagrees with me is one of the reasons that I didn't vote for him for reelection, despite the fact that I am a Republican.

Posted by: Mitch Cumstein at October 27, 2005 03:28 PM

I couldn't disagree more with the idea that the president has the right to appoint the justices of his choice and the Senate has no role but to examine their "qualifications."

The Senate's role is "advice and consent." How they choose to exercise it is entirely up to them. The President's right to nominate whomever he wants is likewise absolute. There are no other "qualifications." It's not an "idea." It's Article 2, Section 2, Clause 2 of the United States Constitution.

Now if you mean that the idea that the Senate is supposed to roll over and play dead and OK every nominee out of sheer deference is silly, I'd agree. That would be silly. But neither is it the Senate's role to micromanage the selection of nominees, just return their collective yea or nay. Checks and balances.

Posted by: Tully at October 27, 2005 03:45 PM

Mitch, thanks for the clarification.

Still, I find the general argument"plumbing a scotus nominee's ideology should be largely proscribed" to be a peculiar finesse.

I am no more clear on what things might be kosher lines of inquiry and which not than I was years ago. I find myself uncompelled by appeals to tradition and to the need for judges to be circumspect in light of possible future need to judge on related cases.

I find myself concurring more and more with Tully's view that because the senate has the right to advise and consent, therefore the senate pretty much has carte blanche as an entity to decide. In other words, any individual senator can ask just about whatever question he or she wants as long as he or she believes it's relevant to their ability to advise and consent. And then nominees have the right to refuse, demur, weasel, or whatever. But THEN each senator has the right or even the duty to deny consent if they felt the answer was insufficient.

It's not clear at all to me why the weasel term "litmus test" provides any elucidation here. Suppose a senator says, I believe that abortion is murder. I advise the president not to nominate to scotus any person unwilling or reluctant to remedy this abomination. And I refuse to give my consent to any such niominee, for this very reason. IMO, that's consistent with the Senate role in the confirmation process as described, to advise and consent,or not consent. (As would a similar pro-choice stance!) In other words, as Tully likes to point out, the only reliable definition of unfit to serve as a scotus justice is the failure to gather the required votes for approval.

Seems to me that the idea that this role of advising and consenting is somehow apolitical or properly subject to a lower level of political scrutiny is imaginary, and no less imaginary for the fact that it has gathered the mythical force of several generations of intellectually romantic buy-in from scholars and historians.

The Pew center survey I linked to elsewhere nearby has a final bit where a solid majority of Americans makes it pretty clear that they think that the views of scotus nominees on important issues of the day SHOULD be important. The question I have, I guess, is this: has history talked the more intellectual of us into a romantic distinction that's bullshit, namely that the senatorial role of advising and consenting should be to any extent less political than any other senatorial vote? Right now, I'm convinced that it has...

Posted by: bk at October 27, 2005 03:53 PM

Tully,

I'm not sure what you mean by saying the Senate should not micromanage nominees. All I'm saying is that I disagree with the notion that the president's nominees are entitled to confirmation as long as they meet some standard of legal competence. In other words, it's clear that John Roberts was "qualified" to be a Supreme Court justice in the sense that he is smart, analytical, experienced, judicious, etc. But that doesn't mean, IMO, that he is automatically entitled to be confirmed. His judicial, if not his personal, ideology are legitimate bases for a vote.

I probably agree with you that some of the recent hearings have become more inquisitions rather than hearings and that is inappropriate.

Posted by: Marc at October 27, 2005 04:20 PM

Part of me wonders if Bush will pick the conservative golden pick, and thus inititae the epic battle we've all been expecting/fearing. OTOH, Bush has spent a lot of political capital, and perhaps will go for the less contriversial Roberts-type pick.

It's a good thing that Miers went down in defeat. She's just wrong on all levels. Reid's support for her I cannot get around. That just bothers me.

Posted by: Rafique Tucker at October 27, 2005 05:55 PM

I would add, Marc, that any nominee without the nerve to (however politely--John Roberts was a good example) tell an out-of-line Senator to stick it where the sun don't shine when they ask an inappropriate question probably doesn't have the "right stuff" in the first place--IMAO, of course. I agree about entitlement. No one is "entitled" to a confirmation. I would argue that they are entitled to a hearing, and the case can certainly be made that if they are referred out of committee they're entitled to a floor vote sometime before the next administration. But that would take us back to the filibuster debate....

I would say that the process of Senators attempting to destroy a nomination before hearings are held, or automatically excluding any nominees not on a pre-agreed list, or otherwise trying to pre-determine who could be nominated, would be micro-management.

Brian, don't forget that justices "shall hold their offices during good behaviour." I'm not sure what's supposed to constitute bad behavior, but you could certainly call it a qualification even if it requires actually getting the job first.

Posted by: Tully at October 27, 2005 06:09 PM

Brian, don't forget that justices "shall hold their offices during good behaviour." I'm not sure what's supposed to constitute bad behavior, but you could certainly call it a qualification even if it requires actually getting the job first.

Not sure what your point is here, Tully. Seems to me that this bears only on kicking out someone already appointed. In other words, this reinforces the idea that after consent has been given, the criteria for removal is different and requires something more egregious than simply not liking the justice. That goes to the rationale for lifetime terms, to shield judges from the political repercussions of unpopular decisions.

Posted by: bk at October 28, 2005 09:11 AM

Yep. My only point being that it's the 3rd listed Constitutional qualification for sitting on the SCOTUS bench, even if it's a post facto qualification. It has absolutely nothing to do with getting there in the first place. Your read on the rationale is correct, but I find the undefined term "good behaviour" interesting. Also along that rationale is the non-reducibility of judicial salaries during tenure.

Posted by: Tully at October 28, 2005 10:15 AM