October 27, 2005

After Miers.

Should I say something more about the Miers withdrawal? I keep thinking I should, but somehow I feel so calm about it all. I'm glad that the difficulties are over. But we shouldn't be complacent, because the new struggle is about to begin. I haven't been monitoring the news that much today, but from what little I saw, I got the impression that the hardcore conservatives who led the way, undermining the nomination, are spinning the withdrawal as their own personal victory that entitles them to have their demands served the next time around.

Is it true that they brought down the nomination? I don't for one minute believe the cover story, that the impasse over document production required the withdrawal. And I recognize that the strong and articulate opposition of conservatives unsettled the nomination and raised the threshold much higher than it would have been if Republicans had just closed ranks with the President. Remember when Lindsey Graham advised everyone to "shut up" and wait for the hearings? But it was Graham yesterday who was saying Miers needed to "step it up a notch." The nomination collapsed right after that. I think it was the loss of support among more moderate Republicans that really destroyed hopes that Miers could make it. So we shouldn't accept exaggerated claims by the far right. Bush should not have to respond to the Miers debacle with one of their very favorite nominees.

Or is everything different now? Now that the right wing of the Republican party has experienced its independence and power, perhaps it will never get back in the party box again.

I would think Bush could nominate someone just about exactly like Roberts -- if such a person exists. (It's hard to be impeccably qualified, spotlessly clean, just conservative enough, with a paper trial and without a paper trail, and willing to put up with all the crap that looks even crappier than it did a month ago.)

But maybe the newly fired up right won't swallow even a Roberts now. Yet if Bush gives them what they want, it will light a fire under the Democrats, and that fire could easily spread to the moderate Republicans. Some folks love the idea of that hot, hot fight. It might be very distracting at a time when Bush needs to create a distraction, but somehow I don't think Bush wants a big fight.

At this point, it may be too late to avoid one. The attempt to avoid a fight by choosing Miers was a spectacular failure.


ShadyCharacter said...

But short of conceding the court to the progressives how can a fight be avoided? Roberts got through because he was replacing Rehnquist on the court and thus wasn't likely to change the balance of power. Bush has two options. Leave the court in the hands of the living-constitution crowd or do what he pledged to do in the election, which is appoint a justice in the mold of Scalia and Thomas. With Meirs he attempted to do the former while asserting he was doing the latter and he was called on it by conservatives (i.e. the people who elected him). I doubt he'll try to do that again.

digital mule 2 said...

I think a significant number of those opposed to Meirs opposed her on the merits. Her apparent lack of interest in constitutional law made her selection a gamble too close to the gambles that conservatives felt they had lost with Kennedy and Souter. The Republican base should coalesce around someone with credentials who appears to have a coherent framework of Constitutional interpretation. Does Althouse have concerns that those individuals whose names are currently bandied about are “Too Extreme” to be fit to sit on the court?

Joaquin said...

Bush now has no choice but to go with a conservative nominee. Anything short of that is unacceptable and if there is a fire-storm from Democratic Senators, so be it.
Right now, I think a good fight might be a good thing.

Allah said...

[F]rom what little I saw, I got the impression that the hardcore conservatives who led the way, undermining the nomination, are spinning the withdrawal as their own personal victory that entitles them to have their demands served the next time around.

I think that impression is mistaken, Ann. The two names I'm hearing mentioned today most often are Maureen Mahoney, who argued in favor of affirmative action in Grutter, and Michael McConnell, who apparently has quite a few fans among liberals within the legal establishment.

I'm also not sure it's fair to say that this is a victory for the "right wing of the Republican party." Off the top of my head, I can think of three libertarian bloggers -- Virginia Postrel, Jeff Goldstein, and Bill Ardolino -- who opposed Miers's nomination. Instapundit also seems not to have been too thrilled with her. I'm sure I could find many more if I looked at that Truth Laid Bear page.

BTD_Venkat said...

How about Mahoney?

Gerry said...


I think you are engaging is a bit of romanticizing of a particular vision of 'the right.' Not only would the right accept a John Roberts, the right would damn near have a collective orgasm over another like him.

I really think it is possible that it will be Sykes.

XWL said...

What looked like a mistake could become a strategy.

With Miers soaking up attention and ire now Pres. Bush can nominate a true conservative with a voting and written record who is either male or female.

With O'Connor willing to stay on the court for as long as it takes he could even intentionally nominate someone (or a couple someones) unlikely confirmable for ideological reasons and make the Democrats look obstructionist (and possibly help preserve or widen the Republican majorities in the house and senate).

Foot in Mouth disease runs rampant on both sides in DC, but it generally strikes those opposing worse than those affirming regardless of the situation or candidate so the longer this drags on the greater potential harm against Democrats.

So hopefully a failure to confirm Janice Rogers Brown will come next, followed by a failure to confirm Priscilla Owens, followed by a failure to confirm Alex Kozinksi followed by the confirmation of Michael Luttig around spring or early summer.

Brendan said...

Paraphrasing President Ford, our "brief national nightmare is over." Bush tried to sneak an underwhelming, underqualifed turd past his base and got caught. So be it. Her (eventual) appointment would have been far more damaging to the GOP and W's legacy than today's recusal. Besides, redemption is only one stellar nominee away.

In these difficult times, the White House would be wise to reflect on some vintage Hall and Oates lyrics:

She's Gone Oh I, Oh I'd
better learn how to face it
She's Gone Oh I, Oh I'd
pay the devil to replace her
She's Gone - what went wrong?

EddieP said...

I for one am sad to see Miers go. I don't know how qualified or unqualified she was, but I would like to have watched the hearings and made up my own mind. I resent the fact that she was lynched by the massa's in the big house. I don't want a$$holes like Bill Kristol and George Will foisting their version of the truth on me. That's BULLSH*T.

Ann Althouse said...

Allah: It's my purpose in this post to say that the extreme right can't claim the credit. I opposed the nomination on sheer lack of merit, lack of background in constitutional interpretation or anything to compensate for that.

john(classic) said...

People with strong positions seem to have worked themselves into a mass of contradictions.

Thus for instance a strong individual rights champion is anathema, while a weak individual rights candidate who has one or the otehr position on Roe is acceptable to one or the other faction, so long as they have the opposite opinion on some otehr individual rights.

As Kozinski rather famously said:

"It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us."

I incidentally, would love to see Kozinski nominated. He is strong on individual rights, and reading a Kozinski opinion is always a pleasure.

Brendan said...

It's my purpose in this post to say that the extreme right can't claim the credit.

Exactly. Would anyone seriously place George Will, Glenn Reynolds, Charles Krauthammer, and Prof Bainbridge in the "extremist" wing of the GOP?

The best part of today's announcement? No more specious charges of "treason" or "elitism" from Hugh Hewitt.

MnMark said...

The Democrats were able to push through Bader-Ginsberg, a left-liberal, without any serious opposition from the Republicans because the Republicans followed 200 years of tradition that a President gets to choose whomever he likes as long as they are competent, regardless of ideology.

So there should be no need for "stealth candidates" at all for the Republicans to get a right-conservative on the court. It's only fair, and it's only following centuries of tradition.

If the Dems are going to play dirty, then we absolutely need to have that fight right up front and in plain view so the people can decide in the next election who is right. This trend towards stealth candidates is unhealthy. There should be no need for that at all.

Bring on a competent, experienced, openly conservative justice like Scalia and let's have the fight all the way to the finish.

Undecided said...

I dunno, maybe SHE decided she wasn't qualified enough. Maybe the thought of being embarrassed by her own lack of knowledge in front of the senators and the whole world was the real tipping factor. "[A] crash course in Constitutional Law" come on! That's like saying I'm going to take a crash course in Mandarin Chinese and then apply for a job as an interpreter at the U.N. But for the most part I agree with what you've posted. I still hope for another woman to replace Sandra Day. Maybe one with a couple of kids, a full-time job teaching law somewhere in the Midwest, an artistic bent, likes to blog and make podcasts and has a considerable following. A guy can dream, can't he?

Ruth Anne Adams said...

Are you feeling Miers' remorse?

TopCat said...

Most people dismiss those wascally wepubwecans, but I think its a mistake. They sincerely believe this country has gone off track, in no small part due to the excesses of judicial elitists. I think trying to paper over this fight, as McCain and the Gang of 14 did, is similar to all the Great Compromises before the Civil War; it's postponing the inevitable and making it worse.
When the conservatives get a clear majority on the Court and start redirecting the law, how are the ACLU types like Newdow going to react?

The Drill SGT said...


Your chance to get the first word in. I just finished watching what I think was the Evening News on ABC. In closing, they shilled for their morning talk show with the following 2 questions (paraphrased from memory)

1. If Meirs had been a man would he have taken such abuse?
2. What does her defeat mean for professional women everywhere?

My wife (a senior Federal attorney) and I are waiting with deep concern for your views on these ground breaking questions

Matt Barr said...

If she'd been Harry Miers she wouldn't have been nominated in the first place.

The President will do as little as he has to do to "fix" this. He will not give the base that was upset about Miers its Brown or Owen; his pick will let everybody know who still wears the pants in the country. (Possibly Laura, but still.)

Hopefully, there's simply no way Gonzalez could be confirmed given the document/privilege issue. Because that's exactly who he wants to nominate right now, I bet.

Simon said...

I commented here. It is a victory for none, a defeat for a few, and a relief for everyone except the Democrats (who, needless to say, are now beginning to canonize Miers in anticipation of a Michael Luttig or Edith Jones nomination).

My conclusion is that, "[u]nlike some, I am not yet prepared to break out the champaign; the goal was always to get a genuine Scalia/Thomas-style Originalist on the Supreme Court, not simply to kerick (or, if necessary, bork) Harriet Miers' nomination thereto. The champaign corks will pop here when Bush nominates - and the Senate confirms - such a Justice, regardless of what color their skin is, what their religious beliefs are, what gender they are, or which school they went to."

Charlie Martin said...

Here's my prediction, for what it's worth: if Bush picks anyone to the right of Larry Tribe, they will be eviscerated by the left and the media on the theory that if the nominee is acceptable to the Evil Radical Right Wing, they must be "outside the mainstream". The likely outcome will be someone who is either just as stealthy, or a Souter.

The Kristols and such have managed to shoot themselves in both feet.

alikarimbey said...

Prof. Ann, I wonder if there is a thought that this so-called victory by the Right (of Miers Withdrawl) shows that the Right is more determined THAN the Ultra-Left of the Democratic Party (e.g., Kossacks)?

That is, Professor, do you think Kossacks could get a Democratic President withdraw?

Does this show that the Right is in fact the reason why Republicans (sadly) control three-branches of the government?

That is, the Right is more Determined, more Passionate, more powerful, than the ultra-left like nation magazine?

Any ideas? How come no one is think of the parallel concept?


DRJ said...

I agree with Allah. It wasn't the right wing of the Republican party that put the most effective pressure on President Bush. It was the combined force of many conservatives - moderates and right wing - who objected because they perceive Harriet Miers is a lesser talent compared to the proven conservative Judges in America today.

I also agree with Professor Althouse that President Bush would like to appoint another John Roberts. I absolutely believe that his base would love that. Speaking as a charter member of the base that objected to the Miers' nomination, I'm so afraid of what President Bush might do next that I would fall over with delight at another Roberts.

I have no idea who President Bush will nominate and, sadly, I think it could go any direction - right or left, technician or idealogue. I doubt President Bush will nominate a close friend again, but he might be inclined to choose a Texan like Judge Priscilla Owen.

My gut feeling is that President Bush will pick a nominee who was vetted in the first nomination (that resulted in John Roberts' nomination) and who had the cleanest record, even if it wasn't someone President Bush particularly liked or bonded with. If he still thinks a woman should be the nominee, then President Bush will probably focus on Judges Edith Clement, Edith Jones, or Priscilla Owen. I hope I'm wrong since I would prefer a Luttig or McConnell nomination.

The Ugly American said...

The truly said thing about today and what has happened the last 3 weeks is that the actions of some in the Republican Party have not just hurt their party, it has hurt the country. It has hurt every one of We The People. This has made the judicial appointment process harder and more partisan and more beholden to ideological litmus tests for every nominee in the foreseeable future.

if you care to read more


Simon said...

"the actions of some in the Republican Party have not just hurt their party, it has hurt the country. It has hurt every one of We The People. This has made the judicial appointment process harder and more partisan and more beholden to ideological litmus tests for every nominee in the foreseeable future."

Specifically: President Bush, Andy Card, Leonard Leo, James Dobson, Hugh Hewitt...and so on.

MnMark said...

"...the actions of some in the Republican Party have not just hurt their party, it has hurt the country..."

I disagree. The person who did the damage is the President. If you're going to nominate a crony, the crony at least has to be very highly qualified and reassuring to your base. Miers was neither. There was no way he should have nominated her, and the fact that he did says a lot about the decision process going on in the WH and about the President's arrogance.

I don't think any harm was done here at all. The Democrats are no more or less likely to be obstructionist than they were before. The only thing that's happened is that a lot of Republicans (like me) who were already wondering about Bush because of his immigration and spending policies realized that the man isn't actually a conservative at all, just like his father wasn't. We know more than we did before...that's a good thing.

Allah said...

The more I think about it, the more I think it's going to be Cornyn.

Linda said...

I, for one, am thrilled that Miers is gone. I was so hoping Maureen Mahoney had a shot -- I was very impressed with her appellate court record (including her successes with the Supreme Court) and the way she spoke with the Judiciary Committee as a witness for John Roberts. It seems that she's the closest to a female "Roberts" -- except she hasn't yet been a judge. So, we'll see, but she's who I'm predicting will get the nod on Monday.

fish said...
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