"Withdraw This Nominee"

Charles Krauthammer joins the anti-Miers conservative camp:

If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.

Another interesting observation: If the president's goal is adding a judge who'll be deferential to executive power in the war on terror, it may backfire if Miers' possible role in shaping the very policies she'd be asked to rule on ends up requiring her to frequently recuse herself.

Comments

[quasibill]

"it may backfire if Miers' possible role in shaping the very policies she'd be asked to rule on ends up requiring her to frequently recuse herself."

But the question is, would she? She's the only one with the power to make that call once she's a Justice. And we've seen quite recently that Justices (and soon to be Justices) see conflicts of interest quite differently than we common folk do.

[peachy]

I wonder if Harriet likes duck-hunting?

[peachy]

I wonder if Harriet likes duck-hunting?

[joe]

Does her son do election law?

Would counsel please approach the bench? There's a scratch on the car, Beav. Were you going to tell me about that?

Sorry, Pa!

[Peter K.]

This controversy over Harriet Miers, especially the Senator Brownback comments, appear to me as a Br'er Rabbit trick to get Democrats to support her. Here's the scenario:

Brownback says he cannot back her because he could not get her to say, in a private meeting with him, that she'd favor a review of Roe v. Wade. ("Skin me alive, but don't throw me in that briar patch!!")

The Democrats fall for it: They back her, figuring that if Brownback, et al, oppose her, there must be something right about her -- from their perspective -- on Roe v. Wade. They further assume that if Miers is not confirmed, Bush will "cave" to the right-to-lifers, and pick a more certain anti-choice nominee. That is, they would foolishly believe there IS a more certain anti-choice nominee. So they do exactly what Brownback, et al, actually want: They cast their votes for Miers, and Browback into the briar patch.

A stealth nominee, indeed.

[Tonio]

A slightly more devious take on Miers, than that proposed by Peter K:

GWB nominated Miers realizing she might not be confirmed.

If Miers is confirmed, he wins, and has a reliable vote.

If Miers loses, the Democrats will have probably spent most of their political capital on opposing her, and will not be able to block the next nominee without being branded "obstructionist." GWB's replacement nominee will be more "judicial" and also more evangelical-friendly.

Ie, Miers is a stalking-horse.

IMHO.

[Akira MacKenzie]

GWB's replacement nominee will be more "judicial" and also more evangelical-friendly.

Robert Bork,anyone? 🙁

[joe]

Tonio,

Political capital doesn't work like money. If you spend money, you have less of it.

If the Democrats draw on their accumulated political support (you in the back, what's so amusing?) to win a public fight and block her confirmation, they don't reduce that capital. They increase it.

[Dave W.]

I think Douglas Ginsberg would be more hostile to Raich, so I am cheering for him as the contingency plan. Appoint one for the Gipper!

[JD]

"as it would have occurred to no one else to nominate her."

Well, no argument there, but I thought everybody knew that even SC appointments are getting awfully political. Remember when Thomas was nominated? FOr the prior opening (which Souter ended up getting), he wasn't even on the long list, much less the short list, or at least so I have heard. I don't know that too many people actually thought that he suddenly shot from obscurity to being the top pick for legitimate - ie, non-political - reasons.

[Dave W.]

The good thing about the recusal issue is that it gives a motivated senator an ideology-free reason not to confirm. Here is how that works:

Ask Miers her position on recusal at the confirmation hearing:

- if she give an answer indicating that she would be recusing a lot, then vote against her on that basis.

- if she gives an answer that does not make us confident she will recuse, then vote against citing concerns about conflict of interest

This whole area of inquiry is lose / lose for Miers. It would be a good reason not to vote for her even if she were the reincarnation of Benjamin Nathan Cardozo.

[R C Dean]

joe, it could be a pyrrhic victory. By the time they get done slapping the little lady around, the non-frothing public might have had enough and they won't have the support to block a credible nominee, even if the nominee is a righty.

I don't think the Dems can just block nominee after nominee, gaining strength as they go.

They did some of that on the Circuit Courts, and it cost them at the last election.

[R C Dean]

JD, the seat Thomas took was the "black" seat. It had a different list than the seat Souter took. If Souter wasn't already on the court, he wouldn't have been on the list to replace Blackmun, you can be very sure of that.

[Dave W.]

If the Democrats draw on their accumulated political support (you in the back, what's so amusing?) to win a public fight and block her confirmation, they don't reduce that capital. They increase it.

So if the Democrats end up going along with this confirmation, then that would be quite a puzzler, wouldn't it.

[John in Nashville]

Recusal at the Supreme Court level unfortunately requires each justice to be the judge of his/her own impartiality. For example, in the modern era's most flagrant case of judicial activism, George W. Bush was represented by a law firm in which Justice Scalia's son was a partner. Had Justice Scalia done the honorable thing and recused himself, the Court would have divided equally, and the decision of the Supreme Court of Florida interpreting Florida's election statutes would have stood.

Ms. Meirs is a ranking official in a White House where the first question asked is, "How will (a proposed policy) affect persons whose name begins with Bu and ends with sh?" To suppose that a Bush sycophant will exercise considered judgment on a matter of importance to the current President is at best naive.

OTOH, that kind of situational ethics bodes well for proponents of the continuing validity of Roe v. Wade, at least unless and until Jenna and Barbara get sober.

[joe]

David W., Washington Democrats acting like wussies and shooting themselves in the foot is not generally considered "a puzzler."

RC Dean, I've never understood this belief on the right that questioning, even rejecting, a judicial nomination is some sort of horrible, abusive act. Republicans were certain, absolutely certain, that tough questioning of a black or hispanic or Catholic nominee would discredit them in the public's eye. Remember Ted Kennedy and Pat Leahy "discriminating against peole of faith?"

This belief that the public would look at the Senate grilling the White House Counsel, and get all weepy because she's just a girl...I don't buy it.

[joe]

Or, rather, I could see that happening if the Senators' behavior was overly nasty or partisan, but I don't believe opposing a candidate per se would get them in trouble.

[Ted]

RC Dean -

What's your evidence that people voted Republican because Democrats blocked a handful of Circuit Court appointments?

Ted

[joe]

*crosses fingers*

C'mon, RC, say Thune. Say Thune.

[B.D.]

Of the conspiracy theories on Mier's nomination, the one that this is a win-win for Bush because Democrats will have spent their political capitol is the most odd. Senator Harry Reid championed Mier's nomination to Bush, after all. Is it possible that Reid set Bush up rather than the other way around? I doubt it as I think incompetance flows equally from both men.

[Dogzilla]

I am convinced the purpose of this "nomination" is to put someone on the Court who will vote just as Bush/Cheney/Rove wants, especially when it comes to issues of executive power. There is NO WAY she will recuse herself for anything.
The LAST thing the administration wants is an independent, intelligent conservative on the bench. Does anyone think Janice Rogers Brown would be unskeptical of executive power? Her opinions display a lot of suspision toward government, God Bless her.

[Ted Baxter]

The Quirin decision was plagued with conflicts of interests, as Jonathan Turely documents. Yet no recusals. I don't hold out much hope on that front.

[bigbigslacker]

I've just read the best reason yet to not appoint Miers. Apparently, Bush has been playing "hide the salami" with her. According to one recent presidential candidate, that is...

http://msnbc.msn.com/id/9601984/

(just as I would stick it to my conservative friends, if I had any, I can't help but forward this to all my lib pals. I'm such a dick!)

[joe]

Dear Howard,

That's not what "play hide the salami" means.

joe

[bigbigslacker]

and "camel toe" isn't what you get from walking over hot desert sand...

(in fairness, Howard may hang around a more sofistikated crowd than regular joes. But still, it is funny he thinks Bush plays hide the sausage with supreme court nominees)

[thoreau]

I skimmed the article and I don't see the quote that you guys are talking about.

Somebody help me out here?

[Jadagul]

Simple answer: hit ctrl-f and search for "salami." But for the relevant quote:

DEAN: Well, certainly the president can claim executive privilege. But in the this case, I think with a lifetime appointment to the Supreme Court, you can't play, you know, hide the salami, or whatever it's called. He's got to go out there and say something about this woman who's going to a 20 or 30-year appointment, a 20 or 30-year appointment to influence America. We deserve to know something about her.

[thoreau]

Jadagul-

I swear that I did that whole ctrl-f thing.

I must have mispeled "salami."

Me no smaart.

[js]

I tend to think that the public would tire of continual rejections from the Democrats. It could be spun by the Dems, to their base, as heroic resistence. But it could be spun by the
Repubs, to many more middle of the road people, as tiresome partisan gridlock. But I'm not an opinion poll, obviously.

Some Democratic resistence would indeed be motivated by unprincipled political considerations (duh). But of course being critical of whom to select is also very important, but that would require the public be convinced of this, and based on what? Consitutional understanding? Good luck!

A system that depends so much on the nominations of SCOTUS justices in the first place is probably a terribly flawed one. Ah well, just saying.

[joe]

I imagine that's why Democrats' rejection of nominees is so sporadic. Bush is 1/1 on Supreme Court nominees, and roughly 205/210 on other federal courts.

[crimethink]

playing hide the salami... is that like getting some santorum?

[thoreau]

crimethink-

My brother and I were talking about Rick Santorum running for President. We figure that by 2008 Bill Clinton will have been gone for 8 years, and it will be time to put some Santorum back in the Oval Office.

"Put Santorum back in the Oval Office!"

I'd totally vote for Rick Santorum! If for no other reason than so that future generations of high school students can giggle when the American History teacher discusses the early 21st century.

(Yeah, I know, Clinton and Monica apparently didn't do anything involving Santorum. I'm taking some creative liberties with my joking about Clinton's sex life.)