Why Oh Why Are We Ruled by These Morons? (Supreme Court Edition)

Is there any reason--any reason at all--to think that Harriet Miers is among the top hundred people best qualified to be on the Supreme Court?

UPDATE: Matthew Yglesias writes:

TPMCafe || Justice Miers : I'm afraid I know almost nothing about Harriet Miers. A friend, however, recommends this post from certified rightwinger David Frum:

I believe I was the first to float the name of Harriet Miers, White House counsel, as a possible Supreme Court appointment. I have to confess that at the time, I was mostly joking.... She would be a reasonable choice for a generalist attorney.... She would make an excellent trial judge.... But US Supreme Court? In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met...

Poor David Frum. He wants so much to be a Bush loyalist without drinking the koolaid to the extent of Amity "the fact that the country and President Bush personally were already mobilised for [Hurricane Katrina] has saved lives" Shlaes. But Bush makes it so very hard.

Meanwhile, the Federalist Society has gone absolutely apes--- this morning...

Comments

[Chris]

A guess: After the Roberts confirmation was unexpectedly smooth the administration knows that the Dems will be forced to fight the next nominee tooth and nail. So rather than put the "real" nominee forth, they nominate a loyal crony as a decoy to draw all the Democratic wrath. The Republicans can then extract concessions from the Democrats by being "bipartisan" and sinking the nomination. Having forced the Democrats to waste all their ammunition the administration will then be able to make the "real" nomination without fear of a battle.

So don't worry, there's no way that Miers will ever be confirmed.

[aretino]

Other than the ability to score a corner office in the White House?

[s9]

She's demonstrated excellent proficiency at screening letters to the President.

[wcw]

She's among the 100 most-loyal Bush apparatchiks, so of course she's among the 100 most-qualified!

Prediction: she gets confirmed easily. For whatever mysterious reason of his own, Harry Reid suggested her. Maybe he has photos of her with a yak in a compromising position -- teaching the yak about evolution, say.

[Davis X. Machina]

"Is there any reason--any reason at all--to think that Harriet Miers is among the top hundred people best qualified to be on the Supreme Court?"

George said it.
I believe it.
That settles it.

Sorry, God.
Sorry, Bible.
You just don't rate anymore....

[Movie Guy]

Bush: Miers is "a pit bull in size 6 shoes."

http://www.cnn.com/2005/POLITICS/10/03/miers.profile.ap/

Yep. Just what we expected...

[save_the_rustbelt]

The Senate confirmation process, and the Democrats' obsession with abortion, militate against appointing anyone based on any real qualification (witness John Roberts).

Often, we get the government we deserve.

[Jonathan W. King]

save the rustbelt writes:
> The Senate confirmation process, and the Democrats' obsession with abortion,
> militate against appointing anyone based on any real qualification (witness John
> Roberts).

Oh, please. I am not a fan of John Roberts, but the annoyance I felt at his nomination was very different than the disbelief I feel now. The thing that was devastating about Roberts was that he was a lawyer so good that other brilliant lawyers, who are paid to argue with each other and would dispute the color of an orange if given an opportunity pretty much all said, "dang, that guy is a brilliant lawyer". Oh, and he'd already argued more cases in front of the Supreme Court (39, with a 25-14 "record" ) than almost anybody out there. The lore is that Senator Orrin Hatch suggested to Clinton that Justices Bryer and Ginsburg would be reasonable nominees who who not face much opposition because those are the kind of judges a good Democrat should be nominating. I'm guessing that, in the laternate universe where Hatch were a Democrat, he would have told Bush the same thing about Roberts. This is *nothing* like Miers.

Miers is just simply a Bush crony who happens to be a lawyer. Her big positive claim to fame is that she was fairly astute at climbing up the ladder to power in a time and place where women lawyers didn't have much of a shot. That's not nothing, but it isn't exactly an argument for putting her on the Supreme Court.

I'm not eager to say this, but John Roberts was almost certainly one of the top 100 people anybody would name to the Supreme Court, and probably one of the top 10 a Republican would name. I don't see how Miers would crack the top 100 except for the fact that she has been with Bush since 1994. This is the very essence of cronyism, and corruption and cronyism remain the top arguments any opponent of the current Republican regime should be using against the Bush administration.

And Brad DeLong is right about the Federalist Society types being apoplectic about this. My favorite is the reaction at Yale's chapter:

http://www.yalefedsoc.org/archives/2005/10/harriet_miers.html

The "clean" part of that reaction is this:

# A terrible, terrible pick. Cronyism at its worst. It's one thing to staff
# the executive branch with loyal incompetents - they'll disappear when the
# Bush Administration does. But to try to cram one onto the Supreme
# Court - to put the country under this woman's thumb for 10, 15, 20
# years - that's inexcusable.

Yeah, it's not good for you to hold back like this, so Angus Dwyer than really tells us what he thinks in the next paragraphs, but this is a family blog, so just go there and read it yourself.

[Daren L]

Chris:

Youre point is well taken. I'm not sure how many people watched the wonderful but underperforming "Jack and Bobby" last season. But one storyline had the president nominating a friend who was crushed and denied by both sides of the Senate so that he could nominate some one who truly was his ideological peer. The notion that Maiers is a sacrifical lamb worries me, and one that I wouldn't put pass Rove. Otherwise to me, this nomination makes no sense.

[Steve]

Well, if the idea was to make the Democrats waste their opposition on this nominee, it's not off to a good start when the Democratic leader comes out with nothing but praise for the nominee.

[Brian]

Daren L,

I watched "Jack & Bobby"--what a shame it was that such a great, intelligent series was cancelled--and while I wouldn't put much past Rove, I doubt he would go to such lengths. After all, why would it be necessary? Is he really going to have that much trouble getting the next nominee past the Senate?

[liberal]

Jonathan W. King wrote, "I'm not eager to say this, but John Roberts was almost certainly one of the top 100 people anybody would name to the Supreme Court..."

Huh? Roberts wrote briefs arguing that Congress should, by fiat, be able to declare certain statutes not reviewable by the SC. Anyone holding such a belief in mob rule (as opposed to a democratic republic with constitutional checks on the majority) isn't fit for any federal judicial position.

[alkali]

"Is there any reason--any reason at all--to think that Harriet Miers is among the top hundred people best qualified to be on the Supreme Court?"

A dissent from the implied premise of this question:

It is frequently held that being an outstanding law student at an outstanding law school who writes interesting law review articles about constitutional interpretation is an excellent credential for being a federal judge. It is not a bad credential, to be sure, but there is far more to being a good judge than that.

To take one example, Felix Frankfurter was the outstanding legal academic of his time, but his opinion in Korematsu (http://laws.findlaw.com/us/323/214.html) is an eternal shame. Justice Murphy was a C student at Michigan; his dissent in that case is flawless.

[liberal]

save_the_rustbelt wrote, "The Senate confirmation process, and the Democrats' obsession with abortion, militate against appointing anyone based on any real qualification (witness John Roberts)."

From your posts here and elsewhere, I'd say you yourself have precisely two obsessions: (1) abortion, (2) unemployment in the midwest.

As I just posted, on the issue of judicial review alone, Roberts is completely unqualified for the SC.

Moreover, I didn't see anything in Roberts' record that mitigated against the hypothesis that he's a far-rightist. Might not be fire and brimstone like Scalia, but I'll wager he'll be the same in substance.

Only good thing about him is that he doesn't have former Maoist Janice Brown's views on the Lochner era.

[liberal]

alkali wrote, "It is frequently held that being an outstanding law student at an outstanding law school who writes interesting law review articles about constitutional interpretation is an excellent credential for being a federal judge. It is not a bad credential, to be sure, but there is far more to being a good judge than that."

Damn straight. Two bad the press and the 22 Democratic Senators (including Leahy and Russell "I also voted for Ashcroft for AG" Feingold) are too stupid to understand that.

[Davis X. Machina]

There are instances of nominees from outside the Federal appellate bench who have made good justices, but their resumes are a tad thicker than Mier's.

Frankfurter *was* an outstanding legal academic.
Warren had been Governor and Attorney General of California. --

Murphy's resume was as long as your arm -- Governor of the Phillipines, of Michigan, US AG.

This is Abe Fortas in drag, and I'm not being fair to Justice Fortas.

[Samuel Knight]

I'm defending the Democrats are obsessed by abortion comment above.

The writer is correct in this way: when the question of abortion over-rides all other issues, such as; ? Is this person remotely qualified to be on the Supreme Court?

Roberts was an OK choice as far as being smart, but he was clearly not a good choice as Chief Justice since he's never run anything in his life.

But this lady. Wow. By what argument can you possibly believe that she's gotten any good background. And what the heck is Reid thinking? It's the Supreme Court, man. Someone should be supremely qualified.

[liberal]

Samuel Knight wrote, "The writer is correct in this way: when the question of abortion over-rides all other issues, such as; ? Is this person remotely qualified to be on the Supreme Court?"

Yeah, but there's no evidence that the Democrats in the Senate (who after all split 22-22 on Roberts), or the "base," thought abortion was the main issue with Roberts. And as I've posted above, there are reasons why Roberts is profoundly unqualified to sit on the SC having nothing to do with the abortion issue.

Actually, in terms of coverage in the press and blogs, my impression is that the main issue was civil rights, because he was relatively more vulnerable there due to the topics he'd written on.

[marky]

This may ruffle some feathers, but it certainly occurred to me to wonder if a 60 year old single woman with no children may have had an abortion at some point in her life. Unless she's Janet Reno, she certainly has familiarity with birth control methods.

[Jonathan W. King]

liberal writes in response to me:
#
# Huh? Roberts wrote briefs arguing that Congress should, by fiat, be able to declare
# certain statutes not reviewable by the SC. Anyone holding such a belief in mob rule
# (as opposed to a democratic republic with constitutional checks on the majority)
# isn't fit for any federal judicial position.

Nope, I didn't like that brief either. But I don't understand your point. The argument is that Congress can designate that some statutes are not reviewable (or that they be granted expedited review), and, like it or not, this has happened in the past. Is it a good idea? I don't think it is, but I don't have any legal argument to make about it. Obviously, I'm not a Constitutional scholar, and I don't pretend to know a lot about this particular controversy, but I don't see how beliefs or arguments in favor of a specific view of when the Court can and cannot intervene is itself a black mark that says you shouldn't be a federal judge. Who, if anybody, has jurisdiction over a specific legal matter is at the very *heart* of legal reasoning.

Again, my frustration with the Roberts nomination is that it was very difficult to build a good argument against his being confirmed that didn't rest on specific (usually political) opinions rather than on his basic credentials or capabilities. With Mier, the argument is completely different. She's a Bush loyalist hack with no real credentials that would put her in the top 1000 people in line for the job. That is why she should be opposed.

[pgl]

Decisions, decisions. Do we support a weak moderate or do we hold out for a Scalia II?

[alkali]

Davis X. Machina writes:

"There are instances of nominees from outside the Federal appellate bench who have made good justices, but their resumes are a tad thicker than Mier's. ... Murphy's resume was as long as your arm -- Governor of the Phillipines, of Michigan, US AG."

A fair point, although the Murphy appointment was regarded in its day as tossing a plum to a political pal. (Murphy had wanted to be Secretary of War.)

The key thing, I think, is that the notion that you could somehow rank the hundred "most qualified" SCOTUS candidates just misconceives the legal profession. Chuck Klosterman said on ESPN.com the other day, "I could insist that the greatest band in the world is actually four unsigned guys from Oregon who have never made a record and are just bouncing around the Portland club scene ... However, I could never claim that the best quarterback in the country is actually some 28-year-old dude working in a car wash in downtown Detroit, and that this person is substantially better than Peyton Manning. That would immediately seem idiotic to everyone."(*) The legal profession is somewhere in between: there are good lawyers and not so good ones, but there are probably at least five thousand lawyers in the US who could credibly serve on the Supreme Court, and maybe more.

(* http://sports.espn.go.com/espn/page2/story?page=simmons/050928&num=0)

[Big Al]

Some are born great,
Some achieve greatness,
Some have greatness thrust upon them.

[wkwillis]

My belief is that the Republican party factions are going to split up soon over their irreconcilable economic differences, and that changes what Mier is going to do when she no longer has a framework of party politics to go along with.
So, are Mier's feelings going to lead her to be as bad a judge as Robert's finely reasoned legal thinking? She's going to wake up some morning realising that "I'm a grownup now, a Supreme Court Justice, and I can do ANYTHING I want!".
This is a bad thing if you are looking for predictable law, but not necessarily a bad thing if you are looking for justice.

[JR]

Reid's approval and the Democratic acquiescence to Miers is hard to explain. I think PGL comes close:
"Decisions, decisions. Do we support a weak moderate or do we hold out for a Scalia II?" But this story is six and a half hours old, and I'm sure we will learn more about everybody's incentives.

In any case, kudos to the President for reacting to Katrina and the Brownie fiasco by taking a hard-nosed stand against cronyism!

[Maynard Handley]

"
Huh? Roberts wrote briefs arguing that Congress should, by fiat, be able to declare certain statutes not reviewable by the SC. Anyone holding such a belief in mob rule (as opposed to a democratic republic with constitutional checks on the majority) isn't fit for any federal judicial position.
"

What is your opinion of direct election of senators --- is that part of the descent to mob rule? Or, in the other direction, should the electoral college be removed?

(For what it's worth, I'm not especially convinced that massive democracy is a great idea, so I am happy with judicial review of everything. Was indirect election of senators a good idea? I don't know enough US history to know, but the idea doesn't horrify me. But then I understand, and admit, that I am leaning against the tendencies of our times which are to allow the mob more control in all ways.)

[liberal]

Jonathan W. King wrote, "...I don't see how beliefs or arguments in favor of a specific view of when the Court can and cannot intervene is itself a black mark that says you shouldn't be a federal judge."

Let's just say you and I have very different views of what comprises democratic governance.

[liberal]

Maynard Handley wrote, "What is your opinion of direct election of senators --- is that part of the descent to mob rule? Or, in the other direction, should the electoral college be removed?"

I'll leave it as an exercise for the reader to locate the logical fallacy in this comment.

[liberal]

Jonathan W. King wrote, "Again, my frustration with the Roberts nomination is that it was very difficult to build a good argument against his being confirmed ***that didn't rest on specific (usually political) opinions*** rather than on his basic credentials or capabilities." [Emphasis added]

What is that supposed to mean? Define "political," "credentials," and "capabilities," and how they should relate to the appropriateness of a given nominee for the SC.

[Stormy]

One this is certain: Harriet knows where the bodies are buried.

And the legal problems of this administration are drawing tighter and tighter.

[DuckedApe]

Even if you can't fool all the people, all the time, you can fool some of the people all of the time, and all of the people some of the time. The Supremes are supposed to be those people who are the least often (least severly, or both) fooled by legislation improperly produced, inconsistent with the Constitution, or both; kind of a peer review who will say "Who do you think you're foolin'? Re-write!" They are not infallible, as their appointment of Bush as president in 2000 may demonstrate.

How can one hold that some laws are too important, too essential, to check their validity, when no such provision for exemption is inscribed in the rules of the game? If there were criteria for exemption, that would be different, and there could be debate, but in the absence of some definition of "extenuating circumstances" we are contemplating tyranny.

Hopefully, Justice Roberts's apparent intelligence will qualify him for his place among the "rarely fooled" and not tempt him to play at "and furthermore I can fool you better." Hopefully, he is a technician, one who has played to win whatever the challenge (like in debate competitions) rather than to further a politico/moral agenda; hopefully, now that he is deciding the winners and losers, he will be rigorous and impartial in judging the technical merits of the arguments.

If truly "Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met..." she may well not have her place among the "most rarely fooled", even if we are talking about law rather than executive competence.

[save_the_rustbelt]

If it makes any of you feel better, some conservatives are going ape-wild-crazy-mad over this bizarre nomination.

Bush has "jumped the couch." He is the lamest of lame ducks, not because he has no power, but because his White House produces really bizarre decisions such as this nomination. Rasputin Rove has lost his touch.

Time for the purple Kool-aid. Now if the Democrats would just stop their circular firing squads long enough to run some solid campaigns.

[Z]

Not so outlandish that Congress has the ability to declare certain questions outside the Court's authority to review. Each Branch is subject to checks, and this is a check on the Judiciary -- albeit a disputed one, however clear the text.

Article III, section 2 of the US Constitution

Note the last line.

In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have appellate Jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make.

[rea]

"there's no evidence that the Democrats in the Senate (who after all split 22-22 on Roberts), or the "base," thought abortion was the main issue with Roberts."

I disagree--Roberts made some statements in his testimony pointing toward an O'Connor-like position on the the constitutional right to privacy and the status of Roe and Casey as precedent. If he stands by what he said, Roberts, replacing Rhenquist, was a step in the opposite direction from overruling Roe. That's why Democratic senatorial opposition to Roberts collapsed.

[Realist]

She has the goods on Bush. I wonder what, exactly. There are so many possibilities...

[masaccio]

The objection to Roberts comes from Oliver Wendell Holmes: the life of the law is experience. What we want is experience with the lives people actually live, rather than the lives that the moral absolutists and ideologues think we should live. Roberts never represented anyone whose income was under the national median, and darn few whose last name wasn't Inc. He has no experience with the lives that my family lives, let alone people who never graduated from grade school.

I wonder about Ms. Mier in this area.

[liberal]

Z wrote, "Not so outlandish that Congress has the ability to declare certain questions outside the Court's authority to review. Each Branch is subject to checks, and this is a check on the Judiciary -- *** albeit a disputed one***, however clear the text." [Emphasis added.]

Right, it says that in the Constitution, but I don't think it's really operative.

[liberal]

save_the_rustbelt wrote, "but because his White House produces really bizarre decisions such as this nomination."

I'd agree with that. I'd figure he'd go for a realiably right-wing hispanic (not Gonzales---not right-wing enough). This woman isn't obviously "not a Souter," and I think the Republican party would get at least a marginal increase in goodwill from the Hispanic vote...whereas I can't see fence sitting woman caring that much about whether a woman is nominated.

"Now if the Democrats would just stop their circular firing squads long enough to run some solid campaigns."

Yeah, and pigs will fly.

[liberal]

rea wrote, "I disagree--Roberts made some statements in his testimony pointing toward an O'Connor-like position on the the constitutional right to privacy and the status of Roe and Casey as precedent. If he stands by what he said, Roberts, replacing Rhenquist, was a step in the opposite direction from overruling Roe. That's why Democratic senatorial opposition to Roberts collapsed."

Did he really say anything that could reasonably allow one to infer that? I highly doubt it, and there's nothing in his record or life to indicate it.

[bakho]

Miers is just another Clarence Thomas without the video rentals.

[evap]

Yes, I wonder... if Bush wasn't so obviously stupid, it might be a brilliant plan: you're the president, possibly facing criminal charges for, to use a far-fetched example, having outed a CIA agent. Why not nominate your lawyer to the SCOTUS?

[sm]

I think everything is catching up with Bush.

[J Thomas]

"Roberts wrote briefs arguing that Congress should, by fiat, be able to declare certain statutes not reviewable by the SC. Anyone holding such a belief in mob rule (as opposed to a democratic republic with constitutional checks on the majority) isn't fit for any federal judicial position."

'In DC, where you stand depends on where you sit.'

There's little chance that Roberts will take that position when he's on the SC.

[J Thomas]

"Some are born great,
Some achieve greatness,
Some have greatness thrust upon them."

It wasn't until this minute that I realised the first time I saw that it was wasn't about "greatness", it was about eunuchs.

Matthew 19:12

[wkwillis]

Article III, Section II, Clause II, is ambiguous as to whether the Congress can specify that the Supreme Court has original or just appellate jurisdiction over any class of problems other than those listed therein, but Clause I says the Supreme Court has ultimate jurisdiction over all suits excepting impeachments, and impeachments are limited to removing someone from office only. Trial comes later, if appropriate, and then the Supreme Court has jurisdiction as to punishment or finding of innocence.

[Lee A. Arnold]

pgl: "Do we support a weak moderate or do we hold out for a Scalia II?" Politically it might be more fun to hold out for Scalia II, because he may be unlikely in the cards. By the evidence of the polls, President Bush and his party have lost the independent, middle-of-the-road, swing voters. This is because of Iraq, Social Security, Katrina, corruption, &cetera. Therefore, although the House districts are well-re-gerrymandered to benefit the Republicans, at these poll numbers they are looking at defending seats, not picking up new ones. So the question is whether the swing voters can be brought back to the Republicans. Well, whatever else you say about this category, they tend to be social liberals. They might not mind a social conservative for the Court if they were ALREADY disposed to support the President, but alienating them further with a social conservative at this moment is just politically unwise. Indeed, they might be more disposed to return to voting Republican if the President appeared to nominate a moderate individual. One way to create this appearance would be to have conservative commentators complain that the nominee isn't conservative enough. So it could be that some of these rightwing columnists against Harriet Miers are in a phonetree with the rovian plamethrowers.

[Gabe]

I doubt she's a decoy. Not that I trust Rove, but put yourself in Bush's head right now. In private he's obsessed with his creeping powerlessness. The only person he could control on the court was this golddigging tit-brain Miers. How about Congress votes that anyone who's ever called George Bush "the most brilliant person she's ever met" be barred from consideration for the Supreme Court?

[liberal]

J Thomas wrote, "There's little chance that Roberts will take that position when he's on the SC."

Of course---that's not the issue. The issue is more abstractly his ideology.

[liberal]

rea wrote, "That's why Democratic senatorial opposition to Roberts collapsed."

Maybe that's why Leahy *claims* he voted for Roberts (both at the committee level, and the floor vote). But if you look at the general "Democratic" (read: base) reaction, he wasn't believed: see
http://www.washingtonpost.com/wp-dyn/content/article/2005/09/16/AR2005091601847.html
"On Abortion, Few Seem to Take Roberts at Face Value" (Wash Post, 2005-09-17), e.g.: "But the reaction from both camps in the abortion wars was startling. Abortion rights groups took no comfort in the chief justice nominee's remarks, and antiabortion groups took no offense. The reason, activists on the left and right say, is that both sides vividly remember Clarence Thomas's 1991 confirmation hearing in the same Senate Judiciary Committee room."

Leahy clearly was acting out of what he perceived was political expediency (and cowardice), not a sincere belief. Feinstein, for one, didn't take his words to mean he would likely not rule to overturn _Roe_.

Of course, it's _possible_ that he won't do so. You have to assign likelihoods to these things, and I assign "unlikely," far less so than e.g. Gonzales.

[liberal]

Lee A. Arnold wrote, "Well, whatever else you say about this category, they tend to be social liberals."

Huh? What about e.g. Catholics who are conservative on abortion but liberal on a lot of other things?

[non-liberal lurker]

Why on Earth would the Dems NOT confirm at once? If the White House has a Machiavellian strategy of setting up Miers, the Dems would have to play along and sink her, right? But why would they do that? They will of course confirm.

Also, the Machiavellian theory requires that the WH have a conservative political and cultural strategy, such that they would actually WANT a conservative Justice. Nothing in the record shows that they do, and much shows that they don't.

Bush has, as the conservative bloggers point out, blown his probably last chance of swinging the SC away from its current course which you people applaud but I deplore. He probably never wanted to shift the SC anyway, since he has long shown himself to be a fully-paid-up member of the "diversity ideology". End of story. Forward to the continuing era of judicial policymaking. Why aren't you people breaking out the champagne? Or maybe you are, in which case, cheers.

[James Wimberley]

Perhaps she's just Incitata (for Suetonius' story,see http://en.wikipedia.org/wiki/Incitatus).

Cross-posted from TPM Café.

[J Thomas]

Liberal, I'm not sure that Roberts has an ideology, or if he does I'm not at all sure what it is.

He might very easily be simply a lawyer, who takes whatever position his clients need him to. And that he's taken mostly reactionary clients could be coincidence, or possibly he's noticed that's where the money is. When he's on the court for life, he might possibly choose to referee the dirty players instead of play dirty himself.

We won't know what he'll do to the SC until we see him do it. I was against having him there from what I did see, but now that he's in I'll just have to wait and see. And if he doesn't do what I want I'll complain. (Not like I'd pay to have him assassinated if he does evil. I wouldn't.)

[Jonathan W. King]

liberal writes:
>
>Right, it says that in the Constitution, but I don't think it's really operative.

So I give up. If a supreme court nominee can't have an opinion on what should be "operative" in the Constitution, then I have no idea what the world is coming to. Of *course* you think his opinions and ideology are all wrong; you won't get much real opposition here to that. But I fully expect that there will be somebody else choosing the judges starting in 2009, and if confirmation fights remain just a testbed for ideology, we all lose. That said, whenever the president nominates somebody who is severely under-qualified, you have to do everything you can to generate a 90-10 "no" vote. No thanks to Harry Reid, I think this would be the right thing to do in the current case.

[s9]

"Why aren't you people breaking out the champagne?"

If and when Miers turns out not to be a right-wing milquetoast, then you can be sure I will be cracking open a few bottles of Veuve Clicquot. They're chilling in the basement right now.

At the very least, I'm quite tickled to see evidence of the Rovians recognizing that they can't afford a fight over an openly conservative nominee. Conservatives have been spoiling for this fight for months now, and I'm pleased to no end that they will have to lump it.

Drink it in, suckers. Your guy doesn't have the mojo for it anymore. Best you retire to some nice comfortable hole somewhere and contemplate your situation for a few months. I'm sure an explanation will come to you sooner or later.

[liberal]

J Thomas wrote, "Liberal, I'm not sure that Roberts has an ideology, or if he does I'm not at all sure what it is."

Of course.

The questions is, given that Bush probably knows more than we do, given Bush's past actions and ideology, and given whatever we can glean from Roberts' record, what's a reasonable "point estimate" (as they say in stats) of his future voting pattern. I hereby bet on "very right-wing, though without Scalia's caustic remarks."

My read of the tactical political situation is that the Dems should not have filibustered, but should have voted "no".

[liberal]

Jonathan W. King wrote, "So I give up."

As well you should. You repeatedly appear to label a nominees' most basic attitudes about democratic governance, constitutional jurisprudence, etc, as mere ideology.

Here's a question for you: would a claim that "no one who thinks _Brown v. Board_ was wrongly decided should be confirmed as a federal judge, regardless of their technical legal prowess" be "merely" ideologically motivated? And is such an attitude improper when examining a SC nominee?

"If a supreme court nominee can't have an opinion on what should be 'operative' in the Constitution, then I have no idea what the world is coming to."

Of course I think he can have an opinion on that; I just think that someone with (what appear to be) his opinions aren't fit for any federal judgeship. After all, appointment to the SC is a privilege, not a right. Duh.

"Of *course* you think his opinions and ideology are all wrong; you won't get much real opposition here to that."

So your point is...?

"But I fully expect that there will be somebody else choosing the judges starting in 2009, and if confirmation fights remain just a testbed for ideology, we all lose."

Again, you're denigrating legitimate, substantial disputes about nominees' attitudes about how to properly interpret the constitution as "mere ideology".

Answer the question about _Brown_ above and maybe we'll get somewhere with this discussion.

[liberal]

Jonathan W. King wrote, "But I fully expect that there will be somebody else choosing the judges starting in 2009, and if confirmation fights remain just a testbed for ideology, we all lose."

The other reason this remark is unfathomable is that the President clearly has the perogative of nominating based on ideology, and exercises that perogative. Why shouldn't Senators (and the public) use "ideological" criteria?

Furthermore, your word "testbed" (again) seems to denigrate the importance of SC nominees' attitudes about what really are fundamental questions of constitutional jurisprudence.

[Julian Elson]

I'm probably a bad person for feeding the save_the_restbelt's tangent, but if a 78-22 confirmation is proof of Democratic unreasonableness, what margin of confirmation would convince you that the Democrats were reasonable? Seriously.

It's sad that cronyism has supplanted any notion of qualification in the Bush administration, even post-Brownie/Katrina. Yet you must admit, there is a certain pleasure to be derived from watching David Frum twisting himself into a pretzel over this.

[liberal]

Jonathan W. King wrote, "But I fully expect that there will be somebody else choosing the judges starting in 2009, and if confirmation fights remain just a testbed for ideology, we all lose."

...maybe you think that
(a) normatively, whoever is the sitting Prez should nominate intellectually brilliant candidates without respect to their "ideology" (perhaps with some kind of criterion for not picking super-duper extremists), and
(b) the Democrats should "cooperate" in the iterated prisoner's dillema, to move confirmation battles towards (a).

Re (a), I doubt there's any historical evidence for this (as a matter of description, not norm); traditionally, over the last 200 years, I'd wager most SC nominees (including Clinton's) are very pro-business (regardless of other facets of their ideology), for example.

(b) would appear to be naive about the nature of today's Republican party. (Cf Republicans' "defection" on the issue of whether states should redistrict mid-decade; in particular, TX and CO, which happened after decades of "cooperation.") I'd suggest (re)reading Paul Krugman's description of the Republicans in the introduction to his recent book.

[liberal]

Julian Elson wrote, "...but if a 78-22 confirmation is proof of Democratic unreasonableness, what margin of confirmation would convince you that the Democrats were reasonable?"

Well, the *ssholes over at the _Wash Post_ editorial section thought that (re Roberts) the vote should have been unanimous. You see, Democrats must always act in a "bipartisan" manner.

If my estimate of Roberts' ideology pans out in his votes, I'll laugh my behind off every time I read a _Wash Post_ editorial disagreeing with him.

[tegwar]

Disagreeing with a decision is not the equivalent of deeming a person unfit to make the decision. Save your laughter.

[liberal]

tegwar wrote, "Disagreeing with a decision is not the equivalent of deeming a person unfit to make the decision."

First, some English: I think you want to say, "X's disagreeing with a decision is not sufficient to deem X unfit to make the decision."

It *might* not be sufficient. It *might* be sufficient.

You want to apply that in the case of the decision being _Brown_, and the nominee disagreeing with it, or _Plessy_, and the nominee agreeing with it?

[John]

I think that by appointing a second or third rate person Bush goes far towards diminishing the Supreme Court as an equal branch of government. Wouldn't that be the purpose of appointing Ms. Miers?

[Greta]

"Miers ... once told me that the president was the most brilliant man she had ever met."

Is her nickname "Brownie' as well?

[tegwar]

Nope, I said what I meant to say. My statement wasn't about Roberts/ a particular nominee but rather about an editorial page like the Post's (the finishing point in your immediately preceding comment).

To spell it all out for you, The Post editorial board disagreeing with a particular decision of Roberts' (in the future) is not equivalent to the Post deeming Roberts unfit to make the decision in the first place. No reason to laugh your ass off when it happens.

Yours was a forward looking statement, as was mine. Why you choose to hold it up to a backward looking test is beyond me.

[liberal]

tegwar wrote, "The Post editorial board disagreeing with a particular decision of Roberts' (in the future) is not equivalent to the Post deeming Roberts unfit to make the decision in the first place. No reason to laugh your ass off when it happens."

You didn't get the point---not only did the _Post_ think that Roberts should be confirmed, but they thought he should be confirmed unanimously, even though he's far right.

[tegwar]

Nope, wrong again. I did get the point.

Are you saying that the only nominee one should ever support for unanimous confirmation is one with whom you expect to agree on 100% of their theoretical future decisions?

It's the crucial distinction between ability to decide and what the decision is. Bringing this back to the original matter at hand- Harriet Miers- it's the first question that has everybody, right and left, concerned.

[liberal]

tegwar wrote, "Are you saying that the only nominee one should ever support for unanimous confirmation is one with whom you expect to agree on 100% of their theoretical future decisions?"

Logical fallacy: strawman.

I'm saying that most Democrats will disagree with most of (what I predict will be) Roberts' votes on controversial issues.

Furthermore, I'd wager the _Post_ will disagree with many, perhaps even most, of those decisions, as well.

[liberal]

More generally, from his published record, Roberts appears to be well to the right of the "judicial mainstream." I think he should not have been confirmed, let alone confirmed unanimously.