Why Harriet Miers might BE "the best nominee"
By bamapachyderm Posted in User Blogs — Comments (55) / Email this page » / Leave a comment »
Promoted from Diaries, again for the much-vaunted different look at things - Thomas
I know, you're saying, "WHAT?" Just hear me out. You might think I'm full of it, but believe me, I know I'm not a legal scholar. What I am is an obsessive--er, inquisitive geek for political strategery, and this is theory, not fact. (What else is strategy, anyway?)
I say she might be "the most qualified" right now, for long-term strategy. In a post this morning (at my blog), I mentioned the John Paul Stevens issue.
Justice John Paul Stevens is 85 years old, but he is said to be healthy (or not?), and hired two new clerks this summer. However, there have been rumors since the late 90's about him thinking of stepping down.
Nobody is saying (that I've heard) right now that he's going to retire, but the possibility is worth considering, especially when you read more recent rumors about Stevens, for example:
In July, Erick posted this here at RedState as part of a post reporting the rumor--that we now know was incorrect--about an impending Rehnquist retirement announcement:
Third party sources are now telling me that the John Paul Stevens rumor is true and that the White House is now planning for a third vacancy, but not until the end of the year. Third party sources, who I treat as credible, say that Stevens has begun taking actions in his personal life to make arrangements for personal affairs. It is presumed that Stevens is taking steps to retire. A separate third party source tells me that Ginsberg is not expected to retire, as her health is fine. Stevens has reportedly sent signals that he will retire once replacements for both O'Connor and Rehnquist have been confirmed.
One last bit. I'm told conservatives in Washington are now nervous that with two retirements to fill it will be harder to fill the court at once with multiple conservatives.
Update [2005-7-8 14:42:34 by Erick]: My monkey wrench theory: If O'Connor is gone and Rehnquist is gone, it makes sense for Stevens to go too as it would give the Democrats a much better rallying cry to prevent the President from stocking the Supreme Court with conservatives. Say hello to Justice Gonzales.
Then this, a couple of hours later:
Fourth, I am reliably informed that the John Paul Stevens rumor that all of a sudden got stirred up today is both completely and totally unexpected as of even the first of this week and also accurate. I cannot get my hands around the cause, but several have hinted that Justice Stevens's health is not good. One said it is believed that Justice Stevens's health has suddenly begun to deteriorate. The cause is speculation, but this bolt out of the blue does appear to have some substance behind it.
A few days later, Professor Stephen Bainbridge wrote:
I got an email today from a reliable source opining that Justice John Paul Stevens will retire this summer if, but only if, CJ Rehnquist steps down. The theory is that Stevens will be willing to let Bush fill his slot only if there are so many spots available that Bush will feel free and/or pressure to nominate at least one moderate.
OK, so let's take these things a step further, going with what we know now.
Rehnquist and O'Connor are gone, so Bush has two new Justices--that much is fact. Let's consider Bush and his advisers might be playing this under the speculation that Stevens may retire, if not soon, then in the next three years. He'll be 88 years old by the 2008 election, so it's certainly not out of the realm of possibility.
We have Rehnquist's replacement in place, a "safe" protege of his that made most conservatives comfortable and didn't provoke a huge fight, despite the fact that he is said to be like Rehnquist. If Bush is thinking of three appointments--and there are many who have said this is definitely possible--and the logic is followed as Erick said, he has to pick a "moderate," or at least someone that will not spook Stevens or the Democrats in the Senate (but most importantly, someone Stevens won't feel would upset the balance of the Court). Someone either a known moderate, or someone very "stealthy." How about someone he knows and trusts, that has no paper trail, and specifically a woman or minority? Speculation was rampant about Gonzales, who might have fit that bill if there weren't so much objection to him from left and right. Clearly, Gonzales was out of the question (I, for one, never thought he'd end up the nominee--it would be political suicide). Harriet Miers' name wasn't completely unknown to the "short list;" bloggers (that aren't lawyers) were already mentioning her name before the nomination.
We know Bush met with Senator Harry Reid, among others, about his possible nominees. Harry Reid:
I personally think that I would like to see someone who has not had judicial experience. I think that we need somebody to go on that Court in the mold of the people on the Burger court, people who have not spent their lifetime holed up in some office writing opinions and reading briefs. One of the people that's being talked about is Harriet Miers, his own lawyer. At the meeting we had with the president last week, we were in the office he has there; I was there, Frist was there, Leahy was there, and Specter was there, plus Andy Card and the vice president. I said, "The vice president got here in a very unusual way. He was chosen by you to find a candidate to be your vice president. You liked the person in charge of finding a candidate better than the people he chose." I said, "I think that rather than rather than looking at the people your lawyer's recommending, pick her." ... The reason I like her is that she's the first woman to be president of the very, very large Texas bar association, she was a partner in a law firm, she's actually tried cases, she was a trial lawyer, and she's had experience here. I could accept that. And if that fits into the cronyism argument, I will include everybody as a crony, but not her, when I make my case.
Does this mean she's a moderate? No, not so fast. Miers couldn't possibly have been the only name tossed up in that meeting, and he could have chosen any moderate with a paper trail or one whom he didn't know. But he DOES know Miers quite well, but it's difficult for everyone and their dog to "know" her.
To be sure, Bush and his staff "misunderestimated" the noisy opposition from the right (to be precise, center-right all the way to far right), and apparently assumed he would be "trusted" that she would be the originalist he wanted. (She does know what he was looking for; that is established fact.) And let's be fair: Bush isn't known for changing his mind from polling or which way the wind blows, and it would be wholly out of character for him to SAY he's going to nominate a "strict constructionist," but DO something completely different. My guess is that he/they assumed that was understood. I don't even think it's so much "trust me," as much as "you know how I am." (You may be frustrated with the Bush Administration, but think: you're angry about spending, but did he promise not to spend money on the war or disaster relief? You're angry about immigration, but did he say he was going to implement the plans you wanted? You may be angry about still being in Iraq, but did he say we would be gone by now? No on all counts, and in fact, the opposite.) And of course, there are the things he said he would do, and did, despite the opposition (embryonic stem cell research funding, tax cuts, and most of all, the war). Honestly, how can you blame them for thinking we wouldn't believe he meant what he said?
OK, back to Stevens. If we go back to the Bainbridge argument, the "requirement," if you will, would be a nominee that would at least have the appearance of a moderate, if not one in fact. She might be politically moderate, as in personally be for more welfare spending or whatever, or she might be a total wingnut. But the important thing by Bush's standards is to have a nominee that respects the Constitution in its original intent. (Do you really think he wants anything else? Look at his other federal judicial picks.) Harriet Miers has the approval of Harry (spit spit) Reid, which might make her less likely to "spook" Justice Stevens. Stevens could then feel comfortable retiring, knowing that another Scalia (that is, with a long, powerful judicial record) isn't incoming. She is obviously "misunderestimated," judging from some of the commentary I've read over the last several days. "Intellectual lightweight?" Heh. Of course, she's not an Ivy Leaguer or from academia. She's "just" a lawyer. No worries, says Justice Stevens. My wife wants me home, I'll just do it; thirty years is long enough. Or maybe not.
Say hello to Justice Pryor (I wish), or Luttig, or Jones, or Owen, or Estrada, or Rogers Brown or whomever. Maybe in a couple years, maybe sooner.
Anyone have betting odds on Stevens' retirement yet?
that it will depend on when Stevens retires, and it'll depend on whether the GOP maintains a reasonable majority margin in the Senate.
If '06 breaks even, I think he WILL go for one of the big guns. If we lose the majority, he won't be able to keep a Big Gun from getting Borked.
Oy. I think I'll go make a donation right NOW to the NRSC. No, to Santorum or someone else facing a tough fight.
they support Chafee (the ultimate RINO), give to candidates only. And don't give up on Rick yet, it's a long ways to Nov 2006, and he hasn't even begun to campaign.
RINO Specter is probably not going to survive until the end of his term due to his illness. If Rendell wins re-election and Casey wins, Pennsylvania would be solid blue should Specter leave office and allow Rendell to appoint his successor. That would royally suck.
Actually, I immediately said No because of Frist, but GAAAHHHH, Chafee! Pbbbbt!
Can't we "Lott" Frist and get a real Majority Leader? :sigh:
it's gotta be AGAG given the way it looks. No way is it going to be a Luttig or any of the other favorites of the right. A filibuster of such a person might have a shot with the Dems arguing, "We've been reasonable twice, but you've gone too far this time. WAAH WAAH This totally throws off the balance. WAAH WAAH" It would have been better to go for broke on pick #2 and nuke the filibuster then.
Republican senators who want to be President are already late in stating they will vote against Miers. and Bush's presidency will be over if she is confirmed because his base will be counting the days until he is out of office. Maybe we should support Miers for fear Bush will let Schumer instead of Reid pick the next Justice.
I still thing Ginsburg goes at Christmas; not Stevens.
Further, although I was out of pocket, this story parallels my thought process since Miers was appointed.
If W had appointed an obviously strong conservative, it wouyld have encourgaged Ginsburg (and/or Stevens to hang on). Someone seen as more moderate gives them more incentive to go. And then we can get a strong conservative.
Think about their positions. Neither are likley to make it through the rest of the Bush term and, at this time, it doesn't appear that the dems have any kind of a realistic chance of getting the Presidency in 2008. So they will go.
Finally, the fallout is good and all but guarantees we won't be getting AGAG on the next appointment. I would guess Garza or Estrada is next up.
about this, but...
In Robert's hearings he said something about the number of cases heard by the SC has declined significantly from some point in the past until last year. I didn't get the impression that he thought it was a good thing.
Does he have the ability to increase the case load?
If so, don't you think that might put more pressure on older justices to retire? It is my personal speculation that the octogenarianism of the recent court has led to the desire for a lighter load.
by voting to hear more cases, but would need two other justices to join him in order to bring the case forward.
Hmmm.
So your point is that we should accept Miers now in hopes of a Luttig in the future?
Utter rubbish.
This is nothing but a reprise of the same nonsense spouted after Kennedy. After Souter. After O'Connor. etc etc etc.
The court has 9 members and rules by a majority vote. I.e. the more votes you have, the more likely you'll get an acceptable decision. Every single vote that is either questionable or uncertain isn't just a null, but a negative.
As it is now even if Miers is consistently conservative and constitutionalist the vote is 5-4 against. If Stevens retires and is replaced by a solid conservatives and Roberts turns out as promised then Miers is then the swing vote.
I.e. O'Connor all over again.
Not acceptable under any circumstance.
give more weight to recommendations from liberal senators than from conservatives?
What an awesome diary. You are Sherlock Holmes and I claim my $5.
Seriously - excellent work.
it is reasonably safe to assume that Miers is a safe pick.(Good post Pachy) All this conjecture about what could happen and stratagizing however much fun it may be is worthless. No one really knows what is going to happen so all this is folly.
Why don't we concentrate on things that we can do somethng about, like Social security reform or relieving the tax burden.
Bush is counting on a number of things:
Miers to exceed expectations at the hearings (95% likely)
The Senate to shy away from a fight and approve Miers (95% likely)
Miers to vote the "right way" on the high-profile cases this term (95% likely)
Miers to be at least a "pro-life O'Connor" -- i.e. approaching a Rehnquist (85% likely)
Stevens/Ginsbery to retire by 2008 (75% likely)
So it seems to me that there's about a 55% chance that we will look back on this in ten years and call it a brilliant move.
On the other hand, the odds are only a little better than Bush putting all his chips on red.
Ah, Beth, the voice of reason once again--but don't let the cat out of the bag to Stevens.
I alluded to this hypothesis at Confirm Them last week. I think Bush is either participating in a grand deal that was made between him, the retiring Justices and Senate Democrats or he is baiting a trap by offering "extremely reasonable choices" - and not too young - to get Stevens or Ginsburg to step down.
we'll see...
Props on your post even though I disagree with the strategy.
In politics as in life, you cannot base decisions on hypotheticals. This does not mean that you should not calculate them into your gameplan, but they should not guide the choices you make until they occur.
Stevens might or might not retire while Bush is President. At present, we do not know whether he will retire. What we do know is that this might be President Bush's last opportunity to nominate a SC justice. As such, future circumstances, however pleasing they might seem, should not factor into his decision. If he has chosen Miers for that reason, then it is a poor reason to do so.
In my opinion, Bush gains either way by nominating a known conservative now. If this is his last nomination to the Supreme Court, then he has not missed his opportunity to do so. If this is not his last opportunity and Stevens does retire, then he can still rely on the same overall strategy by nominating his "stealth" candidate at that time. Either way, he achieves his goal(s).
Justice Stevens spoke at Fordham Law a week ago and while I didn't attend, he was uniformly described as being in "terrific shape." So I'm not too sure the implied health issue is for real.
- Go with the odds! Bush has yet to fail in selecting judicial nominees we desire. Not a single Souter to date!
- Go with the Intel you're not cleared for. Bush knows things we know not. A 3rd seat could be expected IF Bush's 1st & 2nd picks do not cause Stevens to "fight to the death" (in this case, his own).
- The only "quota pick" he indicated a desire to make was for the 1st Hispanic. Therefore, he must expect a 3rd pick. Here's hoping for Garza or Estrada.
- This is an anti-Gonzales pick (a side benefit for us given the uproar makes Gonzales less likely due to the "cronyism" (false) charge).
- The knock-down, drag-out battle I & others long for to fire up the base for mid-terms (& other long-term benefits) can always come for the 3rd seat. Closer to elections is when Bush sees the whites of their eyes.
- Given Reid et al positions, the filibuster threat or an actual defeat by 51 Senators is unlikely.
- We need a 4th vote (ASAP)! Weak sister O'Connor will be replaced in time for critical 5-4 decisions, including NH Parental Notification/Parental Rights case argued 30 Nov. Ditto campaign finance limits on free speech & death penalty for convicted criminals.
- We need a 5th vote (often)! Someone must build the personal relationships to attract a 5th vote from Kennedy or Breyer. Brilliant but caustic arguments inspiring the base from the Scalia mold do not suffice. Roberts & Harriet will. Even liberal colleagues like them and moderate/liberals are emotion-based. 4 liberals picked off Kennedy more than once via this tactic.
- We want the largest bloc of the base finally represented. The evangelical wing of the army gets a seat after 3 election battles displaying loyalty & mobilizing for Bush. Faithful Roman Catholics have Scalia, Thomas, Roberts.
- We want someone our side knows. Of all the nominees, Bush actually knows this one and well. He eschews taking the word of others and certainly not RINO Senators as his father did (Rudman (R, NH)). Can he really prove it to us in public and still get her confirmed over the RINO & Dem objections it would inflame? If oft-misunderestimated Bush's endorsement won't suffice, then take ACLJ Jay Sekulow's who worked with her in selecting judges 'lo these many years (to our consistent applause) or Robertson's or Dr. Dobson's.
- As for other endorsements, it certainly shows the limits of "neocon" influence, yes? In fact, my initial alarm was sparked by Kristol, Frum, Krauthammer panning the nominee. Krauthammer is pro-choice, so he is not our best cue for Supreme Court nominees.
- The court will benefit from a non-Justice again now Reinquist is gone. This pick is safer and less likely to change than a politician's positions. It is unlikely she will drift away from her friends & allies of 20+ years, trading them for 30 pieces of silver & favorable PR in the Wash Post.
- Sun Tzu's The Art of War:
- All warfare is based on deception. (our adversaries foolishly included on the acceptable list one of us)
- If your enemy is united, divide him. (done)
- Supreme excellence consists in breaking the enemy's resistance without fighting (unless one's own troops & allies rise up against you? Get in line, soldiers & partisans!)
Winter Soldier's post should be promoted to its own thread.
Yep. That BA in Philosophy and Religion is still good for something.
Do you think he could count on Thomas/Scalia/Meirs to vote with him?
I especially liked the fact about the demonstrably weak influence of the supposedly all-powerful neocons.
After an initial visceral reaction against Miers I am fully and enthusiastically on board.
MIERS FOR SCOTUS!
ConservativeD said it well in Why It Happened. You should check it out (and recommend if you like it.) He says what we have been saying, except he is much more lucid than I am.
It's almost a given that Bush will get at least a third nominee. If the retiree is one of the liberals (Ginsburg, Breyer, or Stevens), or one of the "moderates" (Kennedy or Souter), he will nominee a solidly conservative minority pick. Their minority will be their shield against a Borking.
If the retiree is one of the conservatives (Scalia or Thomas) he will go with Luttig, McConnell, etc. They would be better nominated as a trade for a "conservative seat".
I wanted the fight now and was disappointed at first. But, now I see that the Dems have ceded ground by suggesting a known quantity (to Bush) for the nomination. This was done out of weakness. It's a tacit admission that they can't stop anyone the President might nominate so they hope that Miers = Souter. When your adversary exposes his undebelly, you take advantage. Bush has seen them one Miers, and will raise with a conservative known to all next time.
Or we can do the right thing. I'm all for doing the right thing.
One more thing we are forgetting. O'Connor's resignation is contingent on the "nomination and confirmation of [her] successor." Until then, she may rescind her notice of retirement.
That gives her an effective veto.
You make some good points, but to say that Bush has picked no Souters is to sort of compare apples to oranges.
All of his appellate picks could be exceptional, and indeed he has picked what are almost-certain great ones in Luttig, Brown, Pryor, Owens, etc, but it wouldn't really matter if he screwed up with SCOTUS picks. It would all be for naught.
We think and hope that Roberts is a solid conservative, but we don't really know yet. We hope that Miers is a solid conservative, but we don't really know yet.
It didn't take Souter very long to disappoint and reveal himself as Bush the Elder's biggest mistake. Hopefully, we'll soon know the truth about Roberts and Miers as our 9 rulers start issuing new decisions.
If W had appointed an obviously strong conservative, it wouyld have encourgaged Ginsburg (and/or Stevens to hang on).
And then we'd only have two Bush appointees, with Ginsburg or Stevens replacement POSSIBLY going to a Democratic president in 2008.
Obviously, you refuse to consider anything other than Bush = idiot.
Better Bush have three appointments than two, especially if 2008 goes to the Democrats.
And you DON'T KNOW that Miers is O'Connor, Souter, or Kennedy, do you? I'm finding that assumption rather tiresome, especially considering 1) as everyone has said, "nobody knows", and 2) Bush's previous nominations were acceptable to most, if not all, the people who would support Luttig/Alito/whomever.
BTW, I did a massive amount of reading yesterday, and it doesn't look like ol' Ruth is going anywhere any time soon. She's got her health back.
1. Pryor was an Alabama atty gen with no paper trail when Bush nominated him and all the same antimiers folks wanted him
2, Miers is no less a "movement" conservative than the DC chatterers. Miers has worked to identify and appoint juet the type of judges the MC's want for 11 yrs
- the last time a president was compromised in such a monumental way as a defeat for miers would be, was carter
- voters could see the split as evidence they might as well vote "the man",
but they also think that they can help the movement by hurting bush
he would appoint another conservative but not one they want. they seem to think that a rather small group of so called movement conservatives from DC are THE pool
voters could see a rift as a reason top splt tickets
this would be the first such party split with a presidnt since carter
carter
miers is no less a mobement conservative
pryor was ala atty gen and had no paper trail wheb they swooned over him
by the way i have spokenwith him a lot at fed soc metings
this is the thing, I was converted by bork's books and kristol, et al and thought that whoever came aboard for the principles and policies was a conservative ally
don'; they see they are hurting THE CONSERVATIVE bush, our president
half the job of keeping movementmoving is protecting him a nd his legacy
glad you are there
great website
he is going to look at the glacial pace of cases, and see if he can move things along more efficiently.
Of course, probably the bunch of old folks there with their bouts of illnesses is what's slowed things down so much.
I'm also worried about the GOP-bashing narrowing or even destroying the GOP majority in the Senate, which will have a VERY negative effect on judicial appointments. (See also: Borking)
WS, copy your comment and put it in your diary!!!
I think it would be pretty tough to rescind her resignation, but it would be easy for her to embolden the RINOs and the Ds to vote against someone who wasn't to her liking.
Bush go ahead and make a recess appt to prevent just whay we see now. Earl Warren was a recess appt, then later confirmed.
Bush would have an easy case to say the 3rd branch needs a full bench,
The caseload of the Supreme Court is (for the most part) purely discretionary; litigants in the appellate courts who are dissatisfied with their results file "petitions for certiorari" (commonly called "cert petitions" ).
The court gets thousands of cert petitions per year but only grants about 100 - 150. Every year the Court gets more cert petitions than the year before, and evaluating each petition is in effect a mini-case itself. So the numbers of cases accepted has fallen in the last several years but the number of "cases" considered every year has skyrocketed. It is probably true that cert petitions take less work to evaluate than full-blown cases - for example, there is rarely a written explanation of denials of cert.
It only takes four votes to grant cert; a single Justice can therefore have a great impact on the number of cases accepted. It would not be difficult to imagine that there are at least a few hundred cases where there are three votes to grant cert; one energetic Justice could theoretically double or triple the caseload.
Bush nominates Scalito. Dems threaten to filibuster. Reps wimp out, as expected. SDO sends a letter withdrawing her resignation for the "good of the court."
Who's could challenge such a thing? Or, more importantly, who would uphold such a challenge to her un-resignation?
Your excellent points point to the 1st principle of war: unity of command. We must not divide forces in the face of the enemy, especially just as we engage in battle. The unpersuaded should simply hold fire, not call in friendly fire, whether they fear we charge as the Light Brigade or not. We will not be turned back by their or enemie fire, we will take the seat, and they just may come to share our joy. In the meantime, they get to watch a liberal rout (always entertaining) as a joy downpayment.
As to your insightful reference to a defeat from within (ala Carter): We do not benefit from casualties inflicted upon us by our own side to advance a preceived greater conservative cause. It reminds me of the Soviet "blocking armies" used in WWII to prevent other Soviet armies' unauthorized movements...not the American way of battle. A defeat of this conservative's nominee will be played as the conservative defeat it would be. MSM would equate Bush's GOP to the days of Carter infighting. Then, Sen Kennedy was the useful idiot. Now who's being "useful?"
Conservative opponents will regret it if we are proven correct in the course of events. Surely, they hope their fears are later proven unfounded. We are likely to overcome all arrayed against Harriet-- conservative opponents just make it bloodier for us.
It hurts to see our champions like Leon H and Erick hope for our defeat in this 1 battle as NARAL, Sen Kennedy et al likewise hope. Some enemies arrayed on our side, like Sen Reid, are at least ProLife. Their liberal allies are not.
On that note, where are the NARAL anti-Miers ads?
They might be evil, but they're not stupid. They're saving their money while "we" (Republicans) do the dirty work FOR them. Like a donation to NARAL.
Stevens retire?
How did you figure that out?
If you are in your twenties and not a liberal you have no heart. If you are in your thirties and not a conservative, you have no brain.- Winston Churchill
Just thought I'd pick on something totally irrelevant and trivial here just for the sake of being picky.
Churchill didn't say that. Aristide Briand did, a French prime minister in the 20th century.
A falsely attributed quote, oft repeated. But who really knows if he borrowed it or not? In any case, it's great theater, and pretty much accurate. We all know what happened to poor Ally "When you grow up, your heart dies" Sheedy. She became a big lesbian failure.
She believed it. Truth is your heart doesn't die. It's just that your brain expands to reclaim some of the space that was unfairly revoked by your sexual organs.
On the other hand, my Bork quote is quite accurate, FWIW.
I was wondering why I couldn't find this quote attributed to him although I had it on pretty good authority that it was his. The necessary correction has been made.
It's very plausible that Bush already knows that Stevens will retire at the end of the year.
I predict that it will be a third 'stealth nominee' though. Bush isn't picking a fight here (so no nominees that were previously filibustered, I would venture to say that this was part of The Deal), he's getting what he wants the best way he can.