Friday, October 28, 2005

Has Hugh lost it?

I intended to comment more deeply on this post Hugh made before Ms. Miers withdrew her name from consideration for the Supreme Court.

I agree with Hugh that Judge Bork went over the top in his essay on Ms. Miers but I am happy to give him the benefit of the doubt. After what happened to him it must have been very disappointing to see a President who claimed to be committed to putting up top notch judges get this so wrong. After Ms. Miers withdrew I thought I would just skip it (that work thing got in the way.... gotta win the lottery).

I disagree with Hugh and his attack that George Will and others implying that it was crude to attempt to use Mier's faith as support for her nomination. It is crude. People of faith are not, by default, crude. It is a crude argument. How many legislators and judges and governors claim on one or more issues that their personal belief is different from the law but.... I am happy for her that she has a strong faith. I am happy for her that her church, and presumably she personally, is opposed to abortion. That tells me nothing about how she would act as a Justice. It certainly tells me nothing about how she might interpret the constitution and laws about personal property rights, affirmative action and a whole host of other issues that will come before the court. Chief Justice Roberts was correct to assert that a judge's personal and religious beliefs should not make any difference on his/her ruling. If Ms. Miers shares that philosophy, which we were told she did, then her religious beliefs are irrelevant and the argument is crude.

But I made the mistake of reading his NYT piece today and I now have to comment. From the October 25 piece:

But many commentators --just read the comments at various boards and blogs-- wouldn't know what a reference to Harlan's dissent in Plessy meant and wouldn't trouble themselves to find out, or even a couple of other major cases and turning points in the history of the SCOTUS. They are making outrageous leaps of logic and engaged in simple invective against a fine public servant and impressively accomplished lawyer. They are not in fact equipped to comment on her qualifications because there is a minimum background necessary that they lack.

Now who is being elitist? So you have to go to law school and or spend hundreds of hours reading all the major decisions and dissents to be able to comment on a Supreme Court nomination? I know little about physics. I probably know more about it than Hugh, but it is not my field of expertise. I will make a bet. I will get together 100 resumes from physicists around the world, most of whom were competent but not brilliant and 5 of whom were Nobel prize winners. I will remove the references to the Nobel prizes (btw, the physics prize is not like the peace prize or the literature prize, you do really have to do something amazing to get it). I will then send the resumes to Hugh and bet that he can pick out the Nobel prize winners from the stack in less than an hour.

Now, onto his NYT piece that has me wondering about Hugh's reality today.

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

I don't know what Hugh was reading but I followed most of his links and I didn't see this for the most part. There is an enormous difference between a filibuster or no vote from the Senate because the Senators don't agree with the philosophy of a highly qualified mainstream nominee and pointing out that why a nomination is disappointing because it is a crony appointment. Taking out TV ads was over the top but most people on the right commenting on the nomination didn't even call for or expect the Republican Senators to vote against her. Many asked the President to withdraw the nominee but that is different. The argument against Bork was that he was too conservative, he was appointed by a Republican and the Dems didn't like him. The argument against Miers was that with a full bench of enormously qualified candidates Bush reached past them and picked an unvetted crony of little distinction and even less public record recommended only by a far left enemy of the opposing party.

Let's be honest here. One cannot make the argument that Chief Justice Roberts was not supremely qualified. One cannot honestly make the argument that he is out of the mainstream. One would have a hard time making the argument that Justice Ginsberg was not well out of the mainstream when she was nominated and has remained there. Chief Justice Roberts got more no votes on the committee than Justice Ginsberg got from the full Senate. Fully half of the Senate Democrats voted against Chief Justice Roberts. There is no comparison between the behavior of Republicans and Democrats on these issues. There is no comparison between their baseless arguments against Thomas and Bork and the vast majority of the right bloggers claims that Miers was a poor choice and appeared to be a crony appointment that should be withdrawn.

Not all critics of Ms. Miers from the right used these tactics, and those who did not will be able to continue on with the project of restoring sanity to the process that went haywire with Judge Bork's rejection in 1987. Conservatives are also fortunate that no Republican senator called for Ms. Miers's withdrawal.

I would argue that most didn't use "these tactics". And Hugh should have added the word "publicly" to that last sentence. He has on the radio but the article should contain it. It is widely believed that some of the senior Republicans went to the White House and told them that they didn't believe that they could get Miers through the process. That is a request for withdrawal from the Republican Senators, it just isn't a public request.

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault.

The wackos on the left did this to Roberts. Miers has nothing to do with this. I agree it will happen but it would have happened had Miers never been nominated. The problem for them is that at some point the nominee gets to go head to head with Durbin/Kennedy/et. al. on public television. Someone truly qualified for the job walks through that process blindfolded with one hand behind their back completely unscathed. The lefty senators just aren't that bright.

After all, it "worked" with Ms. Miers.

Hugh, what worked is a truly political process. Judicial confirmation processes should not be political. The nomination process always will be. The President's base expressed their displeasure. They gave him money, they got him elected and they handed him a 55 seat majority in the Senate. They expected, because he promised it as a condition for that support, a good selection (to them) for SCOTUS. They didn't get it, they screamed, the Republican Senate felt the heat and the nomination was withdrawn before the confirmation process really got into full swing. Notice that the folks who lost the election weren't involved.

My grandfather always said, "If you don't vote, don't bitch." Politicians will tell you "If you don't vote for ME, don't bitch to me." The Republicans are a majority party and if they want to stay that way they had better start acting like it on the issues near and dear to the base.

The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle.

If future Presidents are so dense that they don't understand the difference between appointing an extraordinary non-judge, non-professor and appointing your personal attorney they are probably in the wrong job. Do you really believe there would have been a peep from the right if Ted Olson had been nominated? I sincerely doubt it. Even us poor dumb Christian farm boys can tell the difference between those two resumes.

If there has been damage done to "the cause", and I am not convinced there has been, I believe it came from the ammunition given to the left by the anti-anti-Miers conservatives (led by Hugh) in exaggerating the nature of the dissent from the right.

This could turn out to be a real win for the President. If there is a threat of filibuster on a McConnell, Luttig, Jones, etc., there will now be tremendous pressure from the right on the Sissy Seven to find a spine and support the President's right to get a qualified mainstream nominee of his choice, not Ted Kennedy's, through.


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