Friday, October 28, 2005

I'm not in it for the money, though

My blog is worth $62,099.40.
How much is your blog worth?

Tuesday, October 25, 2005

AP repeats falsehood, uses poor grammar

In the MSM's continuing attempt to re-write history, along with the AP's breaking story about the 2000th death of a U.S. Soldier in Iraq, the AP throws out the stock MSM and moonbat left gospel:

"[T]he Iraq conflict [was] launched in March 2003 to destroy Saddam Hussein's alleged weapons of mass destruction. None was ever found."

First, the grammar. The second sentence has no subject such that the verb "was" refers to the object of the previous sentence, "weapons of mass destruction" (plural). Therefore, "was" should be "were."

Second, both sentences are untrue, or at least misleading. Sure, destroying Saddam's weapons of mass destruction was one of many reasons Bush articulated to persuade Congress and America to overthrow Saddam, but is was clearly not the only reason. Moreover, weapons of mass destruction (i.e., chemical and biological weapons) were found, just not huge stockpiles. Saddam had all the biological agents, the laboratories needed to mass produce the agents, and the delivery systems all ready to go.

(Updated 12/1/05 to add link to CIA analysis.)

Washington Post reporters Dana Milbank and Walter Pincus are liars

Patterico noted yesterday the disturbing repetition of wholly false descriptions of Joe Wilson's findings from his trip to Niger in the media, Patterico's latest example coming from the wholly unreliable L.A. Times. Today, the Washington Post does it as well. Here is the falsehood, as WaPo reporters Dana Milbank and Walter Pincus repeat in their article today:

"Wilson's central assertion -- disputing President Bush's 2003 State of the Union claim that Iraq was seeking nuclear material in Niger -- has been validated by postwar weapons inspections."

This is totally false. Iraq was seeking yellowcake uranium from Niger; Saddam just never actually got any. Moreover, Bush never said Saddam actually had any nuclear weapons or weapons grade uranium, nor did Bush say Saddam had obtained uranium from Niger. What Bush said, in those famous 16 words, was British intelligence confirms Saddam was seeking yellowcake uranium from Niger. British intelligence has never wavered in this assessment. Moreover, Joe Wilson confirmed that Saddam had in fact sought yellowcake uranium from Niger.

All of this was confirmed in the Senate Intelligence Committee's report on Mr. Wilson's intentionally false NYT Op Ed piece. The WaPo is simply too big and influential a newspaper not to have this fact in its collective records or memory. (Dana Milbank and Walter Pincus should talk to Susan Schmidt.) The only explanation for Dana Milbank and Walter Pincus's article today is that they are intentionally lying, or at a minimum recklessly incompetent.

Thursday, October 20, 2005

I can't see Miers getting confirmed

Ok, I took Patterico's suggestion to heart and went here to review all of Harriet Miers' writings - three ABA articles on multijurisdictional practice and a host of "President's Opinions" from the Texas Bar Journal. (You may see four ABA articles, but one is a reprint.)

The ABA articles are actually well-written. Nothing special, but definately passible, literate and informative. I can only assume that, from reading the Texas Bar Journal articles, she had lots of help with the ABA articles. Or maybe the TBJ articles were intended to be vapid, meaningless drivel. Every Bar president's monthly "message" I've seen is vapid, meaningless drivel. Maybe that's all that's allowed.

These writings, along with her response to the Senate Judiciary Committee questionnaire, convince me more than ever that Miers does not have the qualities of an acceptable Supreme Court nominee.

More on Miers' poor writing from . . .

Professor Bainbridge and Patterico (and the Angry Clam).

This is my blog. It is occasionally proofread (by only me). When writing a post, I use this stupid and feature-less html box that doesn't have spell or grammar check. Yet my posts are much more error free than Miers' responses to the Senate Judiciary Committee's questionnaire. My written work as a lawyer? Forget about it. Error free to the level of paranoia.

Of course, errors still get through, but not nearly the amount, or the kind, that are on display in Miers' response.

The single most important criteria to being a successful lawyer in my office is the ability to write. I litigate. I argue. I have to convince other people that my client is right, or that I'm right on the law. 90% of that is via written briefs. I suppose Miers could simply vote right every time and never write an opinion (or, more accurately, have very bright clerks write her opinions for her). But, again, what a waste of an opportunity to add another forceful voice for conservatism on the Supreme Court.

Update: More from Patterico (quoting a David Brooks op-ed). Lots of lawyers can be very successful without knowing the first thing about practicing law. From what I can discern from her writing, Miers is at best an average lawyer with great political skills. Lawyers make partner at law firms for a variety of reasons, but believe it or not the primary reason is not skill as a lawyer, but rather the ability to bring in business.

Miers' experience with the Constitution

Because it is so important, and relatively short, quoted in full below is Miers' response to the Senate Judiciary Committee questionnaire asking for her experience with Constitutional issues:

"17. Constitutional Issues: Please describe in detail any cases or matters you addressed as an attorney or public official which involved constitutional questions. For each case or matter, please describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue. Please identify and provide copies of: any briefs you have drafted or filed, transcripts or other records of any oral arguments you have made, and memoranda, speeches or other materials you have written relating in any way to such issues, as well as any other materials that reflect your familiarity with, views on, or questions regarding such issues.

As Counsel to the President, I am regularly faced with issues involving constitutional questions. I am called upon to advise the President and White House officials on presidential prerogatives, the separation of powers, Executive authority, and the constitutionality of proposed regulations and statutes.

While in private practice, I handled cases involving constitutional questions, some of which are described in more detail in response to questions 15 and 16. I represented Disney Enterprises on several occasions in litigation brought in Texas that involved issues of personal jurisdiction, including Disney Enterprises, Inc. v. Esprit Finance, Inc. In that case, like others in which I represented Disney, I argued that, under the Due Process Clause of the Fourteenth Amendment, there were not sufficient "minimum contacts" between Disney and Texas to justify forcing the company to respond to a lawsuit in the Texas courts. I have handled many cases involving issues of personal jurisdiction under the United States Constitution. For instance, in Westinghouse Electric Corporation v. Rio Algum Limited, described in detail in response to question 16, a significant issue was whether the United States District Court for the Northern District of Illinois had personal jurisdiction over my client, Pioneer Nuclear, consistent with the Due Process Clause of the Fourteenth Amendment. We argued that Pioneer had insufficient contacts with Illinois to be subject to personal jurisdiction there, the court ultimately disagreed.

Microsoft Corp. v. Manning, described more fully in question 16, involved the interplay between state and Federal class action laws, and also raised Federal constitutional issues involving the proper application of the Due Process Clause and the Full Faith and Credit Clause. On behalf of Microsoft, I argued that the trial court's class certification violated Microsoft's due process rights under the state and Federal constitutions and the Full Faith and Credit Clause of the United States Constitution. The trial court decertification of the class was in part based upon the briefing filed on behalf of Microsoft. Thereafter, the plaintiffs dismissed the case altogether.

I handled one of the only modern cases to address the Habitation Clause of the Twelfth Amendment, which states: "The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves." Jones v. Bush, 122 F. Supp. 2d 713 (N. D. Tex. 2000), relief denied, 244 F.3d 144 (5th Cir. 2000) (unpublished), cert. denied, 531 U.S. 1062 (2001). This clause bars a member of the Electoral College from voting for inhabitants of the elector's state for both President and Vice-President. I argued on behalf of then-Governor Bush that the plaintiffs lacked constitutional standing to sue under the relevant clause of the Twelfth Amendment, and in the alternative that Mr. Cheney was an inhabitant of Wyoming rather than Texas within the meaning of the Twelfth Amendment.

In George R. Truitt, Trustee for Hunt International Resources Corporation v. Manufacturers Hanover Trust Company, described in detail above, among the issues litigated pre-trial was the scope of the Seventh Amendment right to a jury trial in suits at common law as discussed in Granfinanciera, S.A. v. Nordberg, 492 U.S. 33 (1989).

In addition to litigated matters, I represented a media client for many years. My representation encompassed many First Amendment issues that were never litigated, including libel. For instance, I would often consult on prepublication review of articles and issues related to reporters' sources of information.

While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause. Likewise, everyday city council issues potentially implicate constitutional rights, including zoning decisions, voting redistricting, eminent domain, and police activities. As a member of the Texas State Lottery Commission, I was responsible for overseeing the operations of one of the nation's largest lotteries. Among the many issues before the commission were questions arising under the Federal Indian Gaming Regulatory Act, which implicates tribal sovereign immunity.

From 1970-1972, I served as law clerk to United States District Court Judge Joe E. Estes. Judge Estes routinely heard cases implicating constitutional issues, and I assisted in researching and drafting opinions and orders."

That's it. This is also what's getting Senator Specter all up in arms. Note the non-specificity of her answers when the question clearly asks her to "describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue . . . ." Thus, in perhaps the most important part of her questionnaire, Miers arguably doesn't even answer the question.

Also, as noted by Professor Cass Sunstein of the University of Chicago, there is no "proportional representation requirement of the Equal Protection Clause." Hopefully, this is all part of Karl Rove's plan to get a real nominee once Miers is voted down in committee.

Karl Rove is a genius! The Miers Feint exposed!

Ok, stay with me on this one. After reading this article from Byron York on NRO showing the current despondency of Miers' White House supporters, I was struck by a string of thoughts on Miers' nomination. Here is my thinking about how the Miers' nomination must have been the result of truly brilliant Karl Rove-esq strategy:

She has so many draw backs that are plainly obvious, and such close ties to the President and the judicial nomination process, that Karl Rove suggested the President nominate her knowing that she wouldn't get confirmed. Miers, ever the team player, accepted the nomination with the idea of taking the fall during the confirmation hearings. Miers' confirmation hearings will reveal that she is intellectually average and not up to the challenge of being on the Supreme Court. (Maybe she is intellectually average, maybe she isn't, but she'll sure play it that way in the hearings.) The ABA will rate her "not qualified" or at best "qualified" with some dissenters. This will give Republican Senators all the ammo they need to vote against her. Democrats will vote against her because of her responses on the Texans Unified for Life questionaire supporting a Constitutional amendment banning abortion except to preserve the life of the mother. She will fail to get out of committee and Miers will graciously withdraw, rather than force the President to withdraw her nomination. The resounding lesson the public will learn is that the real qualities Republicans think are important for a Supreme Court justice are excellent credentials and intellectual firepower - just like they saw with Roberts. Miers - coming so close after Roberts - will obviously pale in comparison.

Then, Bush will have every excuse - indeed, a universal mandate - to nominate a fabulously well qualified nominee - Alito, Luttig, McConnell, Janice Rogers Brown, Kozinski, Jones, Owen, etc. The entire focus of scrutiny on the nominee will then have been re-directed away from the substance of the next nominee's prior paper trail to the fact that the nominee is so well published and therefore of distinguished intellect. The next nominee will then be embraced not as an ideologue, as the Democrats would have tried to paint that nominee had Bush not nominated Miers first, but as a resoundingly well qualified Constitutional thinker. In what will become known throughout history as the "Miers Feint," the Republicans in the Gang of 14 will have no excuse not to vote to end a filibuster, if one is tried by the Democrats, due to the obviously superior qualifications of the next nominee compared to Ms. Miers. The Miers Feint will remove any pretense that a filibuster of the next nominee (who would have otherwise been nominated in Miers' spot) is warranted by "extraordinary circumstances." The Democrats probably won't even try a filibuster because they will look so silly opposing such an obviously qualified nominee. Moreover, they won't be able to argue that the Republicans are trying to ram through an ideologue crony because, of course, the Republicans will have just rejected an ideologe crony.

Then, we'll get another true Scalia-Thomas type on the Supreme Court. Brilliant! Karl Rove does it again! (But, shhhhhh, don't tell anyone - not like anyone reads this).

Actually, if Democrats try to blow the whistle on this strategy, they'll look even more like crazy, conspiracy-theory moonbats.

Wednesday, October 19, 2005

Miers' responses to the Judiciary Committee's questionaire

Is here. Updates after I read it.

Update #1: In one of Miers' cases before the U.S. Supreme Court (a criminal appeal taken pro bono) the opposing counsel was, ta da, then-Solicitor General Robert H. Bork. Guess who won. See Popeko v. United States, 423 U.S. 917 (1975) and its prior history.

Update #2: Reading Miers' questionnaire answers reminds me of poorly written and awkward resumes and cover letters I review. Language like "In addition to my practice of law, my experience includes running and holding public office" is just plain poor, grammatically incorrect ("running for and holding public office"), and sillily (that's a word, trust me) inflating of barely relevant experience ("proficient in Microsoft Word!").

Update #3: My god, it's worse than I thought. Check out this barely coherent paragraph:

"My experience on the City Council helps me understand the interplay between serving on a policy making board and serving as a judge. An example, of this distinction can be seen in a vote of the council to ban flag burning. The Council was free to state its policy position, we were against flag burning. The Supreme Court's role was to determine whether our Constitution allows such a ban. The City Council was anxious to encourage minority and women-owned businesses, but our processes had to conform to equal protection requirements, as well."
Where to start? First, she does not mean "interplay" she means "distinction" as she says in the next sentence. The two are not synonyms. There may be "interplay" between the City Council and judges, but there is no "interplay" between serving on the City Council and serving as a judge, which in this context seems to suggest the same person (i.e., her) holding both positions at different times (making "interplay" almost logically impossible). In the next sentence, what is that comma doing between "example" and "of"? (Caveat: I am getting Miers' response from the WaPo's website in electronic form (not .pdf) and it is possible that they have not copied Miers' response correctly as I have noticed numerous formatting errors. This paragraph is formatted correctly, though.) In the next sentence, another misuse of the comma - the comma separates two complete sentences. It should be a semi-colon or a dash.

Finaly, what the heck is that last sentence (also with a stray comma) doing in this paragraph? She begins the paragraph by saying "[a]n example" yet apparently tries to fit in another example at the end without saying, "another example." Moreover, this other example adds nothing about the distinction between the roles of an elected legislator and a judge. Ok, so the City Council had to deal with Constitutional issues when it wanted to discriminate in favor of minorities and women (disturbing in and of itself that Miers chooses this as an example). How does this have anything to do with describing the differences in roles between legislators and judges? If anything, it seems to conflate the two roles.

I assume this questionnaire was proof-read by literate adults. If this is the best they could do to Miers' original draft, boy will her law clerks have their work cut out for them.

Update #4: Ok, I read the "judicial activism" part and whoever wrote her response did a fairly good job coping from Roberts' response in his questionnaire. I still highly doubt Miers has the intellectual firepower to out argue Stevens, Ginsburg and Breyer, and spot the fallacies, sophistry and just plain errors in their opinions.

I agree with . . .

Judge Bork and Professor Bradley (one of my law school professors at Notre Dame). Miers should step aside or be withdrawn.

From Judge Bork:

"By passing over the many clearly qualified persons, male and female, to pick a stealth candidate, George W. Bush has sent a message to aspiring young originalists that it is better not to say anything remotely controversial, a sort of "Don't ask, don't tell" admonition to would-be judges. It is a blow in particular to the Federalist Society, most of whose members endorse originalism. The society, unlike the ACLU, takes no public positions, engages in no litigation, and includes people of differing views in its programs. It performs the invaluable function of making law students, in the heavily left-leaning schools, aware that there are respectable perspectives on law other than liberal activism. Yet the society has been defamed in McCarthyite fashion by liberals; and it appears to have been important to the White House that neither the new chief justice nor Ms. Miers had much to do with the Federalists."

From Prof. Bradley:

"The reason why I oppose her confirmation — even if she still believes what she said in 1989 [in response to a Texans United for Life survey, Miers answered "yes" to the following question: "If Congress passes a Human Life Amendment to the Constitution that would prohibit abortion except when it was necessary to prevent the death of the mother, would you actively support its ratification by the Texas Legislature?"] — is this: now we are going to have the fight within the Senate and in the media which conservatives such as myself have all along called for. Unless Miers repudiates her 1989 answers — and, in that case, see above — Schumer & Co. are going to treat her as if she will overrule Roe. Very well. But if we are going to have a climactic battle in the Senate over Roe, we need to have it on considerably better ground. Miers is scarcely the person anyone would choose to make the long awaited case against Roe, with the whole pro-choice phalanx put up against her. I mean no insult whatsoever in saying that Harriet Miers she (sic) simply is not up to the job of cogently describing, defending, and justifying before the world what will go into the history books as the most important constitutional law decision since 1954. John Roberts could have done it, as could Edith Jones, to name one available replacement."

These two arguments blow out of the water any deference to Miers' nomination because she'll "vote right." Try to prove me (and Judge Brok and Prof. Bradley) wrong.

Monday, October 17, 2005

Miers should withdraw

Or the Senate should not confirm her (absent the most unlikeliest of performances at her confirmation hearing), or Bush should withdraw the nomination. Of course, you've heard this before. Dennis Coyle on NRO sums up best why we got Miers, and why the nomination is so bad:

"Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.

But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite. If the president does not appreciate this, there is no reassurance another nominee would be any better, and Democrats would surely feel more liberated then to jump on any candidate of substance."

Mr. Coyle is all doom and gloom, but only if Miers is confirmed. I heartily join him in his sentiments - if Bush gave us Miers from the list of rock solid studs he had to choose from, we cannot expect a solid nominee ever. Bush has three years left. Breyer, Souter, Ginsburg and Kennedy aren't going anywhere. Ditto Thomas, Scalia and Roberts. Stevens is 85, but he'll stay on until he dies. He looked in pretty good shape throwing out a first pitch at Wrigley Field a few months ago. This means that a Republican President needs to win in 2008 (c'mon George Allen!) who will actually nominate justices like Scalia and Thomas. That means no Condi, no Pataki, no Giuliani, no Romney. If Miers is confirmed, we are doomed.

UPDATE: Ok, after reading this, take Romney off the list. Mitt in '08!

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.

Friday, October 07, 2005

Ok, now the couter arguments on Miers

Since I've proven, via unassailable logic applied to the undisputed evidence, that Miers was a bad nomination, I could rest on my laurels. Instead, I'll rebut the only meaningful counter-argument:

(1) Luttig, Owen, Jones, Brown, McConnell, Alito, etc. are not confirmable.

Hogwash. Here is how it would go if Bush nominated anyone on the above list. All nine Republican senators on the judiciary committee not named Arlen would vote for the nominee. If the nominee had ever stated the opinion in public that Roe v. Wade was wrongly decided, or said so in the confirmation hearings (which question I think every nominee should answer), Arlen would consider voting against that nominee. Then, the other senate Repulicans would tell Arlen that he could kiss his chairmanship goodbye, and his judiciary committee position goodbye, if he did so. They would patiently explain that if Arlen did not want to vote to confirm the nominee, he at least should give the nominee a chance for an up or down vote on the entire senate floor.

Arlen would either vote for or against the nominee in committee. If he votes against, the vote would be 9-9. Arlen gets booted. A reliable Republican senator replaces him. Bush renominates the same person or the committee re-votes. The reconstituted committee votes 10-8 to send the nominee to the senate floor. If Arlen votes in favor, the nominee goes before the senate floor.

On the senate floor, the Democrats filibuster. Frist need convince only 2 of the seven Republicans on the gang of 14 - Lindsey Graham, John McCain (sorry, there is no way he would support a filibuster if he had any thought of winning the Republican nomination for President in 2008) - to change the Senate rules. Cheney breaks a 50-50 tie. Bye bye filibuster. The full Senate then votes for cloture. The full senate confirms the nominee.


My thoughts on Miers' nomination

After two, count 'em, two very detailed and long posts on Harriet Miers were eaten by cyberspace (I've calmed down, but not by much), I'll give you all the succinct reasons - the objectively correct reasons - why Harriet Miers' nomination was a mistake and a dissapointment.

First and foremost, a nominee cannot be evaluated without knowing the standards to which the nominee should be judged. I am not satisfied that a nominee is merely "qualified." I would be if the left was, but since they are not, and they cheated first, we have to play by their rules. So, in addition to being "qualified," and in addition to having solid conservative bonafides and expressing an intent to be a "strict constructionist," there are two qualities (not qualifications) a nominee must possess to be objectively satisfactory:

(1) The nominee must not "grow" on the bench.

You all know what this means (*cough* Kennedy *cough*). This quality is unknowable, by definition, at the time of the nomination, even to the nominee herself. Hence, we have to look to objective evidence of the types of qualities past nominees have had that didn't "grow." One of those objectively verifiable qualities is a long history of public engagement on constitutional issues where the nominee has put his or her intellectual gonads on the chopping block for liberals to tear apart. This does not necessarily mean past judicial experience, though that does qualify (really, only appellate judicial experience qualifies, unless it is a Federal district judge with a lots of published decisions). Law review articles, public speaking engagements, active participation and leadership in conservative legal organizations, like the Federalist Society or the Cato Institute, etc. also qualify. Only when that nominee has stuck to his or her guns in the marketplace of ideas do I have comfort that the nominee will not "grow."

Harriet Miers does not have this quality. My objection to her nomination is nicely summed up in one sentence by Daniel Henninger on Opinion Journal today: "Harriet Miers may share these reformist views, but her contribution to them is zero." When others were available who would obviously not "grow" on the bench (*cough* Janice Rogers Brown *cough*), there was no reason to take a chance with Miers. Next,

(2) The nominee must be exceedingly successful articulating and promiting conservative constitutional thought in the marketplace of ideas.

It is all well and good to have another vote for Scalia and Thomas on the Court. But Scalia is 70 - he won't be around forever. Far too many times, Scalia and/or Thomas have written brilliant Originalist concurring or dissenting opinions that only each other - or no one - joined. Scalia should have joined Thomas' concurrence in U.S. v. Lopez. Rehnquist should have joined Thomas' dissent in Grutter. When "conservative" justices don't join the excellent and correct reasoning of Scalia and Thomas' opinions, this marginalizes their influence. Lower courts follow and apply the reasoning of majority opinions, not concurrences. Dissents are more powerful and more likely to eventually be adopted when more justices join them. Every time a solid conservative like Rehnquist (and as I suspect will be true of Roberts) does not join Scalia or Thomas, the more the left can argue that Scalia and Thomas are "out of the mainstream."

Hence, it is not enough for a nominee to be a "strict constructionist" or a "conservative" even like Rehnquist. To be an acceptable nominee, that person must have the rhetorical and intellectual firepower of Scalia and Thomas, and must be equally dedicated to righting the ship for all lower courts to follow. Again, Miers might have this quality, but she has not shown it. It is unacceptable to nominate Miers when so many other potential nominees (*cough* Janice Rogers Brown *cough*) have shown the intellectual and rhetorical firepower on par with Thomas and Scalia.