October 17, 2005

About those "things" James Dobson "probably shouldn't know."

John Fund writes in the Wall Street Journal about the behind-the-scenes assurances the White House gave pro-life conservatives about Harriet Miers. Will the confirmation hearing delve into the October 3 conference call?
Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers's hearings. "If the call is as you describe it, an effort will be made to subpoena everyone on it," a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. "Some people were on speaker phones allowing other people to listen in, and others could have been on extensions," one participant told me.

Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers "very hard" on whether Roe v. Wade is settled law. "She will have hearings like no nominee has ever had to sit through," Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. "One slipup on camera and she is toast."...

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. "The nomination is in real trouble," one GOP senator told me. "Not one senator wants to go through the agony of those hearings, even those who want to vote for her." Even if Ms. Miers avoids a filibuster, it's possible Democrats would join with dissident Republicans to defeat her outright.
It's one thing to grill Miers about the Roe v. Wade. That's what they did to John Roberts. It's an ordinary ritual that any nominee should have to endure. It's quite another thing to make the October 3 conference call the object of an intense investigation, with the participants subpoenaed and expected to hold up to grilling -- under oath -- about what was said. It seems to me that the decision to do that would be tantamount to an open demand that the nomination be withdrawn.

18 comments:

Too Many Jims said...

Any thoughts on a federal district court judge being on the call? Seems odd if not outright inappropriate. Goodness, if Dobson was uncomfortable about it shouldn't it have set off signals to others?

peter hoh said...

I think the conference call is fair game. The controversy surrounding it should not be directed at the nominee, however, unless it can be shown that specific promises were made.

Too Many Jims said...

Like asking Kinkeade and Hecht why they are confident she will overturn Roe.

Sloanasaurus said...

Mieras is in trouble. All the liberals will have to oppose her and she has weak support from conservatives.

Perhaps the liberals will be saying about the next nominee... anything is better than Miers.

Too Many Jims said...

I actually expect the Dems not to oppose her strongly unless she steps in it in the hearings. After the Roberts hearing many were saying that the fact that so many Dems opposed him, demonstrated that there was no acceptable nominee to them. If they do not oppose Miers too strongly, that argument dissipates. They could argue "Hey we didn't block his crony who many conservatives think was not qualified, so it is not like we want to block all the nominees." Then if Bush has another seat open up (which is likely more important on some cases) the Democrats can oppose the nominee on different footing. Not saying it is a good or fair argument, but this is an argument that ultimately is one of perception.

Sloanasaurus said...

Yes, but if the Dems let Miers on the Court without a fight, knowing with solid evidence that she will vote to overturn Roe, the Dem's base will never forgive them.

PatCA said...

I don't get what's improper about the conference call. Doesn't every president "sell" his nominees in similar fashion?

Sean said...

I don't get how records of the call would be relevant to anything, unless the nominee was on the call. If I say here that I am confident that Miers (and Roberts, for that matter) would vote to overturn Roe, can all of us be subpoenaed and cross-examined?

Too Many Jims said...

You have two judges on the call, one of them a sitting U.S. District court Judge, saying that they are confident she will go against existing Supreme Court precedent and you don't think that is noteworthy? Just regular "selling" of the nominee?

peter hoh said...

If Dobson and others were told that the nominee had made specific promises to the President, that would be damaging, and worth uncovering, in my opinion. On the other hand, I can think of a couple fairly benign things that fit the "I know but I can't tell" description. Perhaps Dobson was told the President's short list for the next Supreme Court vacancy. Or he was told specifics about why certain potential nominees were vetted and rejected. In either of those cases, I think that the contents of the conference call shouldn't be made public.

Adriana Bliss said...

Well, the fact that Bush called Miers a "traiblazer" and "pioneer" should have already put everyone on notice that Miers is out to legislate from the bench. Today, abortion, tomorrow, Christian prayer in schools and Christian school vouchers.

Stiles said...

Even if Miers is pro-life, is there any reason at all to believe that she would be a sure vote to overturn Roe v. Wade? I highly doubt it. If you are a Democrat, you'd have to expect that Miers is the most ambiguous nominee on Rove v. Wade Bursh would nominate. Unless she really step in it during the hearings, I think you will see a lot of Democrat support.

PatCA said...

Jim, it is noteworthy. I just don't get why it's illegal. Are judges precluded from giving opinions on nominees? Maybe the lawyers could speak to this.

Right, Adriana, and they're building those concentration camps for homosexuals as we speak!

peter hoh said...

Adriana wrote: Well, the fact that Bush called Miers a "traiblazer" and "pioneer" should have already put everyone on notice. . . .

Just as long as Bush doesn't call her a crusader.

Too Many Jims said...
This comment has been removed by a blog administrator.
Too Many Jims said...

PatCA,

I do not know if anything the district court judge did was "illegal" but here is a link to Code of Conduct for United States Judges http://www.uscourts.gov/guide/vol2/ch1.html

Can't say there is anything I see that says "thou shall not appear on conference calls discussing Supreme Court nominees." However, given that the White House played some role in his participation in the call it may call into question his impartiality towards the administration when the administration appears as a litigant in his court room. Further, Canon 7 admonishes against specified and general political activities. Not sure this falls squarely there but in the world of ethics, an appearance of impropriety is often the standard.

As to your specific question: Are judges precluded from giving opinions on nominees? The Committee on Codes of Conduct is authorized by the Judicial Conference of the United States to publish formal advisory opinions on issues frequently raised or issues of broad application. They have actually issued an advisory opinion on your question. Here is a link: http://www.uscourts.gov/guide/vol2/59.html

Here are the important parts I take away from that advisory opinion.

"[T]here would be no impropriety in a judge's answering a proper inquiry from an appointing officer with respect to the judge's knowledge concerning the character and fitness of a candidate for appointment to any public office, including that of judge."

"By "appointing authority" the Committee intends to include the President and Senators and their selection committees or commissions."

"[T]he judge should avoid pleading for a candidate of the judge's choosing in opposition to others under consideration; the judge should not lend his or her name to any publicity campaign for any candidate."

Beldar said...

Strange things sometimes happen on Capitol Hill.

But spending time grilling anyone, or issuing subpoenas, to discuss what people who were (i) not the nominee, (ii) not authorized to speak for the nominee, (iii) not reporting anything the nominee has actually said, and (iv) making obvious guesses in response to a question that encouraged them to guess -- well, it's hard for me to imagine a bigger waste of time.

I'm assuming, Prof. A, that your quotes in your post title were intended to indicate some skepticism or sarcasm, since Mr. Dobson was making guesses based on guesses, rather than actually having any kind of probative evidence.

Jim, thanks for the link to that advisory opinion. It's reasonably important, I think, to note that the advisory opinion does not say that judges may only comment in response to requests from an "appointing authority." And it's likewise important to note, I think, that these weren't just two random judges being brought in to speak solely because they were judges; rather, it appears that the reason they were asked was that each has a long and close acquaintance with Ms. Miers. Nevertheless, as you point out, particularly due to the potential reach of "appearance of impropriety" concerns, judges can't very well just say, "I'm not here today as a judge, just as an old friend." I'm not prepared to say they acted "unethically," but all things considered, I wish they hadn't gotten involved in sharing their guesses in this particular forum.

whit said...

Adriana said..."Today, abortion, tomorrow, Christian prayer in schools and Christian school vouchers."

From your mouth to God's hears, Adirana.