The bad news is that John Roberts thinks Samuel Alito is sloppy seconds. The good news is – well, I’ll let you figure that out.
UPDATE: Following the President’s lead, Roberts takes a mulligan.
The bad news is that John Roberts thinks Samuel Alito is sloppy seconds. The good news is – well, I’ll let you figure that out.
UPDATE: Following the President’s lead, Roberts takes a mulligan.
This time, I don’t think David Frum, ConfirmThemAndThisTimeWeReallyMeanIt.COM, Michelle Malkin, Patterico, Hugh Hewitt, Professor Bainbridge, Captain Ed, John Hawkins and I (and, I suspect, George Will, Ann Coulter, Laura Ingraham, and too many others to count) have anything to squabble over. Well, that’s not quite true; we probably are in for a fight, but this time it will be against the guys we’re supposed to be fighting against, and not against each other. Ain’t love grand?
The best part of Alito’s nomination is that he’s such a strong candidate even Chuck Schumer supports him. Oh, of course he doesn’t praise him directly; he saw what that did when Harry Reid did the same for Harriet Miers. Nope, Schumer praises Alito the good old fashion Democrat way, by attacking him on an issue too transparently silly to be taken seriously:
Sen. Chuck Schumer, D-N.Y., also blasted Bush for not picking someone in the “mold of Sandra Day O’Connor, who would unify us.”
Schumer referred, of course, to President Bush’s campaign promise to nominate Supreme Court Justices “in the mold of … oh, I don’t know, whoever.”
“This controversial nominee, who would make the court less diverse and far more conservative, will get very careful scrutiny from the Senate and from the American people,” Schumer said.
Sorry, Charlie, we didn’t nominate the black or Hispanic one this time. Not to worry, though; there’s a decent chance that a third seat on the Court will open up before 2009, so maybe we can appoint Janice Rogers Brown then. Meanwhile, I guess we’ll have to settle for this compromise candidate. Oh well.
Last and least, Alito’s nomination was a far better choice than Harriet Miers’s. While I remained anti-anti-Miers to the end, part of the reason I did was because I didn’t think we knew enough about how kind of Justice she would make, or who Bush would nominate in her place if her nomination fell through. I still think there’s a chance (albeit a diminished one) that Miers would make a decent Supreme Court Justice. I think it’s extremely unlikely, however, that she would have been nearly as good of a Justice as Samuel Alito, and no chance at all that she would have been better. Accordingly, now that we know the end result of Miers’s withdrawal, at least in terms of who is nominated, I have finally come down off that fence I was stuck on for almost a month: I oppose the Miers nomination.
UPDATE: Tammy Bruce dissents in part, acknowledging Alito’s qualifications but expressing lament that Bush did not name a woman instead. Me, I’m glad he picked a solid nominee without respect to sex, i.e., I’m confident he did not pick Alito because he was a man, and would not have been entirely happy if he had chosen any woman because she was a woman (though I can think of a few women I’d have been just as happy with). There’s no right or wrong (nor even any death thereof) to that point, but I do think that later in her post, Tammy’s ex-liberal roots may have caused her to miss a crucial point about judicial conservatism, which is much more different from its political counterpart than judicial and political liberalism are. Tammy writes:
And when it comes to being conservative, there is nothing conservative about ruling in a manner that says government has a right to control communications between spouses. I think all of you would certainly agree with that. And yet consider this when it came to his dissent in Planned Parenthood Vs. Casey…. :
“In the early 1990s, Alito was the lone dissenter in Planned Parenthood v. Casey, a case in which the 3rd Circuit struck down a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses.”
While many of you probably would, of course, personally prefer that a woman tell her husband what she’s doing, especially if she’s getting an abortion, legislating what a wife or husband should tell each other is the opposite of a conservative view of government. Obviously, he’s pro-life, and that’s fine. But that’s a religious position, not an authentically conservative ‘political’ position. The two are very different.
Indeed they are, but just as importantly, both are very different from what Justice Alito did, which was to rule in a judicially conservative manner, not to uphold a law on that basis that it does or does not produce a politically conservative result. To a judicial liberal, all “bad” laws are unconstitutional, and all good laws are constitutional. To a judicial conservative, however, laws that conform with the Constitution are constitutional, and laws that do not are unconstitutional, and the political desirability of such laws is mostly irrelevant (or, where the intended scope of the law in question is clear, completely so). In ruling the way that he did, Scalito did not step into the shoes of the Pennsylvania Legislature and say, in effect, “I think wives who want abortions should be required to inform their husbands first.” What he did say, in effect, was “My opinion about the wisdom of this law is irrelevant, but what is relevant is that I can’t find anything in the Constitution, or even the ‘constitutional’ precedent of Roe v. Wade, that forbids it.” That is the only question a judicially conservative judge should ask, and it’s the only question Alito did ask, or answer.
UPDATE x2: Jon Henke has more on this case, and on a Fourth Amendment case that has a lot of moonbat panties in a twist.
As you probably know, there’s an upcoming special election in California. To keep the polling booths from overcrowding, registered Republicans are asked to vote on Tuesday, November 8, while Democrats are to vote on Wednesday, November 9. Well, not really. If you are a registered Democrat, please do consider voting on Wednesday, November 9. I’ll be your best friend. Well, not really. But I will appreciate the gesture, that’s for sure.
Anyhoo, whether you’re a Democrat, a Republican, a Real Republican who wasted his vote on McClintock in 2003 (which is not to be confused with voting responsibly for McClintock in a 2006 he might actually win), a moonbat Democrat, a Looneytarian or anything else, if you’ve posted your ballot recommendations please let me know. My election guide is here. Where’s yours?
In alphabetical order (to be constantly updated):
Baby X doesn’t have much of a vocabulary yet, but he has mastered the concept of a rhetorical question. Here’s what he told me last week while we were vacationing in Ben-and-Jerry-Land:
Blah blah blah blah blah blah blah? [Shaking head] No! Blah blah blah blah blah blah blah.
Via LA Observed: Kyle Zirpolo, one of the kids the Gestapo manipulated 21 years ago to bankrupt the McMartin preschool and destroy the lives of the innocent individuals who ran it, has publicly apologized as an adult. To the best of my knowledge, however, none of the true villains in that story have. Not Kee MacFarlane or her Children’s Institute International, which continues to pat itself on the back for all the wonderful things it supposedly does for kids today, but whose web site contains no mention of the McMartins or any of the self-styled “specialists” they employed to pressure the kids to “recover” their nonexistent “memories” about them. Not from Assistant D.A. Lael Rubin, who intentionally withheld key evidence from the defense and lied about the defendants ot keep them from making bail, yet was never disciplined by the bar and is allowed to practice law to this day, nor from William Pounders, the idiot judge who let Rubin get away with all that and more. Nor, apparently, has there even been an apology from Zirpolo’s own mother. I guess one of the fringe benefits of accusing somebody of a terrible crime against The Children means never having to say you’re sorry.
UPDATE: Now that same idiot judge is presiding over the trial of an accused serial killer. Lovely.
The saddest part is that the true villain, David Frum, emerges as a quasi-hero. Make no mistake about it; he’s anything but that. While most of Miers’s opponents were blindsided by her appointment, Frum was not, having proudly scooped that possibility as early as July 4. Yet, aside from listing a few superficial “pluses” and “minuses,” Frum neglected in July to mention what a bad idea he presumably thought such a nomination might be. He certainly didn’t let on that it was sooooo bad as to justify a huge neo-borking campaign to be led by Frum himself. Frum held on to that dirty little secret until September 29, a mere four days before the nomination had been announced publicly,after its likelihood had been leaked to other press sources, and probably after the decision had already been made. In that entry, he implausibly claimed that the July post was a joke – despite the fact that it doesn’t read like one or even hint at anything remotely risible. More recently, he non-explained his early non-opposition to Hugh Hewitt, arguing even more implausibly that his July entry was intended to prevent a Miers nomination by ruining the surprise – an explanation Hewitt rightly criticized as too cute by half. The fact of the matter is, David Frum did not know anything about Harriet Miers’s credentials on July 4 that he didn’t also know on September 29. If his true intent had been to prevent what he believed to be a bad Supreme Court nomination, the time to have said so was either on July 4, or in a follow-up post shortly after that, long before any actual decision had been made, let alone publicized or even leaked to the press. But if his real agenda was to embarass his former boss – who, in case you have forgotten, had fired him after only about a year of service – then his timing makes perfect sense, as does his inability to provide a remotely coherent, innocent explanation for it.
To those who have any dealings with Frum, my advice to you is to watch your back. Always. What he did to Bush, he won’t hesitate to do to you, too. I would suggest that NRO consider firing this guy, but given his track record, that would probably be almost as bad of an idea as hiring him was. As long he’s on their payroll, at least he has one reason to Judas someone else instead of them.
UPDATE: Justin Levine, who has either been listening too much to Bill Handel or vice-versa, labels Frum’s treachery “heroic” and utterly misreads my post as suggesting every commentator is obligated to compile a list of all potential nominees and bash all the bad ones just in case. He then challenges me in the same vein to pre-bash Alberto Gonzales. Two problems with that theory. First, unlike Frum in July, I do not believe there is a realistic chance that President Bush will nominate Alberto Gonzales to the Supreme Court. Second, and also unlike Frum’s July entry, I haven’t blogged anything about Alberto Gonzales which could reasonably be interpreted as suggesting I would be OK with such a nomination if it did occur. Nevertheless, on the off chance that “Dumbya” really does live down to that nickname and nominate Alberto Gonzales to the Supreme Court of the United States, allow me to be the first (?) blogger for NZ Bear to track. I oppose the Gonzales nomination.
UPDATE x2: Greg thinks “frum” should become a verb, too. Me, I don’t know; I tend to think Brutus beat him to the punch when he did to Caesar literally what Frum would do to Bush figuratively two millennia later. That earned the old Brute not only a verb, but a noun and an adjective, as well. What a deal!
Hugh Hewitt probably won’t answer these questions so allow me.
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
A. However, those pundits/bloggers who are merely following the crowd and doing the trendy thing should STFU. I voice no opinion as to which pundits/bloggers fall into which category; I’m merely pointing out that both categories exist, and if you have to ask which camp you’re in, it’s probably the trendy group that should STFU.
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?
There are too many such issues to list, so I’ll limit my answer to nominations. Some nominations, such as ambassador to Derkaderkistan, do not matter. Others, such as Fed Chairman, matter a great deal. Supreme Court nominations are very important, as well, albeit less so since you’re only nominate one of the nine at any given time. [Yeah, they're lifetime appointments, but how much that matters varies inversely to the nominee's age.]
3. Is the GOP worse off because John Tower’s nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?
Probably not. Your point? The GOP certainly is worse off because Robert Bork’s nomination for Supreme Court Justice failed and he ultimately had to be replaced by
EdwardAnthony Kennedy. Seeing as Miers has been appointed to the Supreme Court rather than as Defense Secretary, the latter question seems more apropos than the former.
4. Is the GOP worse off because Republicans and conservatives – pundits, bloggers, and elected officials alike – participated in forcing Trent Lott to step down as GOP Senate Majority Leader?
No. Your point?
5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?
No. Is there a point buried in here somewhere? To save time, I might add that the GOP also is not worse off because John McCain ran a primary campaign in 2000 against the guy who is now the sitting Republican President. Or maybe it is worse off, but only if by doing so, McCain displaced a better challenger who would have actually beaten Bush and governed to the right of him – a long shot given the political landscape in 2000, but you never know.
6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?
Yes. It also matters, albeit to a much lesser degree, if a blogger writes a series of confusing, contrived questions that don’t go anywhere.
7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?
Certainly. If you have any evidence Harriet Miers falls into that category, I’d love to see you produce it. I don’t doubt you have that evidence already with respect to several sitting Justices, but alas, there isn’t anything we can do about that except sit around waiting for them to die (or, in Justice Stevens’s case, to admit he’s been brain-dead for at least a decade).
8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?
Judging by the various rating companies, she probably is among the top 100, and certainly is among the top 500. Given the insanely large number of lawyers in this country (even I am allowed to practice law in two states, for Chrissakes), the latter matters, the former does not.
9. Please cite examples of Harriet Miers’ [sic] writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.
I don’t know the procedure for pulling briefs in cases she’s argued, but I presume you could find them if you really wanted to. I’m assuming, of course, that your question is sincere rather than rhetorical. If it’s rhetorical, piss off.
10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers’ qualifications and philosophy that we do not already have?
A clue as to what her judicial philosophy is, how well she knows the basic case law, etc. We only have one friggin’ hundred Senators, one-quarter of whom are sworn to oppose any Republican nominee any way they can. If these guys can’t make her look bad, it won’t be for a lack of trying. As Dafydd asks, I ask too: are you afraid she’ll do badly in the hearings, or are you afraid she’ll do well? If the former, WTF do you stand to lose by waiting and seeing?
11. Do you believe that continuing to tout Miers’ gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?
No. In case you’ve forgotten, it was originally supposed to be impossible for Bush to appoint a man to replace Justice O’Connor the first time. He did it once, if need be he can do it again – though I shan’t complain the next time around if he opts for Janice Rogers Brown or Priscilla Owen instead.
12. Do you believe that continuing to tout Miers’ religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?
No. Again, what is the point, or does that very question assume a fact not in evidence?
13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?
No, it’s not important, all religious tests are wrong, and it’s not proper to question nominees about their religion.
14. Are Harriet Miers’ personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?
Yes. In theory, a judge’s personal views about abortion should not matter. In practice, pro-choice judges have a nasty habit of being so insanely pro-choice that they can’t imagine why anyone else might see the issue differently, and ultimately delude themselves into thinking the Constitution guarantees a right to abortion. And I’m saying this as a pro-choice individual myself. If anti-abortion judges were running around claiming abortion was unconstitutional, then we’d have an equal and opposite problem in the opposite direction. They’re not, so we don’t.
15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?
16. How important is it that Roe v. Wade/Casey be reversed?
17. Which five precedents do you think are in most pressing need of reversal?
18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O’Connor?
19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?
20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination – including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will – are important parts of the GOP’s ability to win public issue debates and elections?
I do, so I technically shouldn’t answer this, but yes, I do believe they are important, albeit a bit less important than many of them (particularly George Will) seem to think they are.
21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?
The former. A change of course on certain issues – namely extreme spending – would be desirable, but I’d be lying if I said it was necessary for the GOP to do well in upcoming elections. The last few election cycles suggest precisely the opposite.
22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork’s defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
Maybe, but it would be a small consolation unless other, much stronger reasons against her nomination were to emerge (e.g., lack of competence). I also think that for all the crapola about a paper trail, the main reason Robert Bork wasn’t confirmed is not anything he’s written about anything, but simply the fact that he looks like Herman Munster.
UPDATE: OK, this issue is moot now.