Sunday, October 16, 2005

Fool me 12 times, shame on me

I'd like to weigh in against the anti-anti-Miers camp - you know, those conservatives who don't necessarily support Miers but think that those of us who do not support her nomination and want it withdrawn are making bad arguments. The anti-anti-Miers position is nonsense, and I'm surprised that an otherwise excellent blogger XRLQ has bought that nonsense.

We start with the reasons why we conservatives are so worked up over who gets on the Supreme Court. Two main reasons: (1) the Supreme Court has unconstitutionally seized the power to read their personal policy preferences in the Constitution, which are dramatically opposed to our values and common sense, using increasingly unsophisticated sophistry (read: increasingly bold in not even bothering to couch their opinions in the Constitution text), and (2) Republican Presidents have a horrible track record in nominating solid justices.

Since and including Eisenhower (but not including Bush II), Republican Presidents have had 15 Supreme Court vacancies to fill. From those 15 spots, we've gotten a grand total of 4 solid justices - Harlan, Rehnquist, Scalia and Thomas. Four. Freakin' FOUR! Do you hear how pissed off we are! FOUR!!!!!!!!!

Of the other eleven, how many times have we been assured that the nominee is a solid conservative? EVERY FREAKIN' TIME!!!!! Please forgive us when it happens for the twelfth time we call bullshit. Let's name them: Earl Warren, William Brennan, Potter Stewart, Warren Burger, Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Dee (erm, Day) O'Connor, Anthony Kennedy, David Souter. (I've left Charles Whittaker off the list because he was only on the court from 1957 to 1962, which in and of itself indicates a lousy pick, but I have no idea what kind of justice he was. Maybe he was solid, but I'm too lazy to look him up properly.) These were all Republican nominees! How could Eisenhower, Nixon, Ford, Reagan and Bush I all have screwed up so much?

Because of this horrible, abysmal track record, we Republicans have diagnosed the problem as best we could. Why would 10 otherwise sensible Republicans, who made it through the vetting process to be the number one selection to the highest court in the land, all have bamboozled the President and his advisors? We're not always talking less than stellar Republicans. Reagan got bamboozled two out of three times. (In fairness to Reagan, Bork's nomination was superb and Arlen Specter should burn in hell for borking Bork. Arlen's still there, but as I explained, he has not the votes he once did.) Perhaps they get lured in to the D.C. culture, European culture, academia, etc. and want to impress. My own belief is that power corrupts and absolute power corrupts absolutely. But it really doesn't matter why they strayed. What matters is, how can we be sure a nominee won't stray?

The first thing we Republicans did is fight hard to change the legal culture. On the front lines is the Federalist Society, nearly single-handedly (as an organization - there are thousands of individual members doing the daily fighting) waging the war within. Next, conservatives worked their rear ends off to get the votes in the Senate so that the next Bork couldn't be borked. Finally, we got W elected twice on the explicit promise that he would nominate justices like Scalia and Thomas (not like O'Connor and Kennedy). Now, here we are, W in the White House, 55 Republican Senators, and a liberal seat opens up. (O'Connor was a liberal. Just because her personal policy preferences happened to be conservative sometimes does not change the fact that she voted her personal policy preferences, without fail, every single time).

We have done all the work. We did it all for this very situation. As Merlin said to Maverick, it doesn't get any better than this. What do we get from W? An unknown. Why are we pissed? Why are we right to be pissed? Let's look at the anti-anti-Miers arguments:

1) She might turn out ok, so wait until the confirmation hearings to see what she'll say.

First, you don't shoot from half-court when you can slam dunk. We could have had a slam dunk - Brown, Owens, Alito, Luttig, Kozinski, etc. Stealth nominees have turned out well once and his name was William Rehnquist. It will take a mighty impressive performance in the confirmation hearings to convince me to support Miers' confirmation. How impressive? She will have to publicly state that Roe v. Wade was wrongly decided, persuasively explain why it was wrongly decided, and in general persuasively argue why strict construction based on original meaning is the only legitimate way to interpret the Constitution and show a deep passion and commitment to maintaining her intellectual integrity on this point once confirmed. Since there is a zero chance of this happening, I feel entirely comfortable opposing her now, loudly and often.

2) You don't need an Ivy League degree to be smart enough to be on the Supreme Court

I'll give this one to the anti-anti-Miers crowd, but only coupled with strength of conviction. The liberals on the court are very smart. The D.C. intelligencia are very smart. The law professors are very smart. Boy do they offer some tempting sophistry. It takes a mighty intellect, or an incredible strength in one's own convictions even when really smart people are arguing against you, to vote reliably. But as I've pointed out, merely voting right is not enough. Do I care that Miers went to SMU (when rankings weren't thought nearly as important), which, for its second tier ranking, is still the highest ranked law school in the Dallas - Forth Worth area? No. Is Miers really smart? Probably. Being smart alone does not make a good justice. Breyer is smart. Could Miers out argue Breyer? Who knows? But I know Brown, Owens, Alito, Luttig, Kozinski, etc. could. Again, 4 for 15.

3) Sure she's qualified

I'll concede that she's "qualified" but that matters not one whit. I'm qualified. Indeed, I'd make a fabulous Supreme Court justice. I'd even say at my confirmation hearings that I think Roe v. Wade was wrongly decided and do my best to patiently explain why. This is the last vestage of Republicans' attempt to hold the high moral ground. Republicans figure that they can get Democrats to stop opposing judges if they convinced the public that the only legitimate reason to oppose a nominee is the nominee's "qualifications," historically how nominations have been vetted. Even the ABA's ratings are still based on whether the nominee is "qualified." This worked with Roberts - the most on-paper qualified nominee the world has ever seen. It won't work with Miers and more importantly it will not stop Democrats from voting against nominees based on judicial philosophy.

When you add the past record of Republican Presidents to the total uncertainty about Miers, plus all the warning signs other conservative bloggers have pointed out, it adds up to about a 10% chance she'll be solid. 10% sucks. We could have 100% certainty. W didn't give that to us. That is why we are pissed. We will not support a 90% chance liberal.


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