The Miers Withdrawal:
So Harriet Miers has withdrawn her candidacy under what seems to be the Krauthammer cover — a move that President Bush was telegraphing pretty strongly over the last few days by repeatedly mentioning that obtaining White House documents was an important "red line" he absolutely would not cross. That's a relief.
My immediate reaction is that the system worked. Harriet Miers is by all accounts a good person and a solid lawyer, but wasn't particularly well-suited for the unique environment of the Supreme Court. As I noted last week, I think the tipping point was sometime last Thusday or Friday, when it became clear on the Hill that Miers just wasn't going to be able to deliver the kind of performance at her hearings that she needed to deliver to get confirmed.
The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams. (For my post making the case for McConnell, click here.)
My immediate reaction is that the system worked. Harriet Miers is by all accounts a good person and a solid lawyer, but wasn't particularly well-suited for the unique environment of the Supreme Court. As I noted last week, I think the tipping point was sometime last Thusday or Friday, when it became clear on the Hill that Miers just wasn't going to be able to deliver the kind of performance at her hearings that she needed to deliver to get confirmed.
The question now is who the President will pick as a replacement. It's impossible to know, of course: Who expected that Bush would select Miers? If I had to guess, though, the current political situation will push the White House to pick someone with broad and deep support on the Right who also won't cause a revolt among Democrats. To me that suggests someone like Michael McConnell or Karen Williams. (For my post making the case for McConnell, click here.)
Related Posts (on one page):
- McConnell and Bolling v. Sharpe:
- Michael McConnell:
- The Miers Withdrawal:
Bush should appoint Mary Ann Glendon.
If the Dems ran off a Bush choice like this, I am willing to bet conservatives would be screaming bloody murder, and deploring a system that makes good people think twice about going through the nomination process.
I have no reason to defend Miers, and in fact think she was not a very strong candidate. But the system would have worked if she had gotten her hearings and received an up-or-down vote. Getting chased off by Krauthammer, Bill Kristol, and the conservative bloggers does not equal a great system.
Don't know much about him - I was in front of him once, on my one and only case in Fairfax - but he certainly seems to have a clue.
Bring on the great defender of RFRA!!
[***PERSONAL INSULT DELETED by Eugene Volokh.*** Folks, please be polite to each other.]
As the Amar brothers pointed out:
I'm no fan of most conservative jurists, but McConnell is far and away the best choice of the bunch. And he's the only one of Bush's potential nominees for whom I'd be willing to make a case for appointment by a Democratic president.
By the way, here's a quick question for all you anti-affirmative action Republicans out there: why is it that, for Republicans, affirmative action at colleges is a moral outrage of the highest order but its totally fine if Bush feels the need to appoint a woman over better qualified men to the SC? This is a serious question.
Dem, where have you been for the past month? Not in the land of the living, it seems.
I think that Brown would trigger the nuclear option. That would cripple Bush's legislative agenda for the rest of his term... but does he have an agenda anymore, now that no one is talking about Social Security?
I'll join the McConnell prediction chorus. He'll get confirmed, and various Republican constituencies will be pleased.
I think the President is more likely than not to stay "outside the monastery." Maureen Mahoney should be a top candidate, and if he is considering Ted Olson, he can have a non-judge who's also red meat for the base.
Also, a number of people above suggested Ted Olsen. The STATED (though obviously pretextual) reason for the Miers withdrawal is a purported concern over executive privilege--the White House doesn't want to turn over documents prepared by its lawyer. Ummm...Wouldn't Olsen have the same problem? He was SG during the GWB's first term. Hard to see how (a) the administration could turn over documents without looking foolish or (b) the Senators who demanded Miers' documents could avoid demanding the same documents with respect to Olsen.
I think John Kyl needs to be added to the list of candidates that would rally conservatives without alienating Democrats.
Answer to your first question, here's a hint: It has something to do with the Civil War and three Constitutional Amendments.
Answer to your second question / hypothetical: I doubt that the Republican base uniformly thinks that it's "totally fine" that Bush appoints a woman over a better qualified male candidate. That being said, and leaving aside the fact that there are a number of highly-qualified female candidates (Janice Rogers Brown, Maureen Mahoney, &others), Bush has political considerations to consider. The Republicans do have to answer to the voters periodically, and a number of them find the race/gender of political appointees significant.
It seems to me that there's a good chance that Bush is, at best,indifferent on abortion (witness his two SCOTUS nominees to date), so McConnell seems an unlikely pick to me. I agree with Orin, however, that Bush is more likely to appoint an approvable candidate than one to "appease his radical right base".
And, by the way, in my opinion the "question now" is: shouldn't the President admit his mistake (i.e. not standing up to his own decisions and, by doing so, discrediting the institution) before chosing a replacement? I think that all sides, democrats and republicans, should demand this, for the sake of the "system".
As to Bush v. Gore, read his Slate posts - McConnell was very harshly critical of the Florida SCt's runaway activism. I suspect that if they'd been on the Court he and Roberts would both have joined the Rehnquist/Scalia/Thomas opinion on Article II.
I guess if you're willing to accept it as a blatant fabrication, that's great. If I were at the McClellan press briefing, though, I'd ask him if Mr. Bush is so spineless that he withdrew a great nominee simply to avoid having to take a principled stand.
I find it interesting that nobody seems to care if Bush lies.
cathy :-)
Let me add one more lonely voice to the small chorus calling for Kozinsky's nomination!
Giving all conservatives what they've been crying for...
That said, W hates to lose at anything. Look for the most controversial choice next:
Nathan Hecht.
We'll see.
The only way to reclaim our birthrights is to explain how the government has systematically taken them from us, and to convince the people we must get them back. Reagan understood that. This is no time for sneaking, obfuscation, and slippery answers. This is the time for a champion of liberty. This is the time for Janice Rodgers Brown.
Who said it was? I was hoping for Michael Luttig.
Yes you are alone on this because there is nothing “antidemocratic” about a nominee who has enough votes to be confirmed receiving an up or down vote.
As far as a showdown over the Byrd option goes, two of the Gang of Fourteen (Warner and Graham) are already on the record as saying that they would consider a filibuster of the President’s SCOTUS nominee to be a breach of the Deal* and if it should happen, they would feel free to vote to end judicial filibusters.**
* But of course as we all know, Democrats already breached the deal with Judge Owens when one of the seven Democratic signatories failed to vote for cloture.
** Besides which, no one seriously thinks that the next time we have a Democrat Senate with a Democrat President that they’re going to hesitate for a moment to pull the trigger on ending judicial filibusters.
What about Clement? He is another Roberts, no?
Yes. What doesn't "make sense" about that? You demand X as a condition precedent to approving the nomination. I won't do X. Therefore, the nomination can't be approved. Therefore, it will be withdrawn.
How about just saying "no"?
He did. That's why the nomination would have to be withdrawn.
I guess if you're willing to accept it as a blatant fabrication, that's great. If I were at the McClellan press briefing, though, I'd ask him if Mr. Bush is so spineless that he withdrew a great nominee simply to avoid having to take a principled stand.
And McClellan would point out that (a) he didn't withdraw anybody; Miers withdrew herself, and (b) what's with the "avoid having to take a principled stand"? It's consistent with taking the principled stand. (You're confusing what the "stand" is. It's not "Nominees must be confirmed even without any documents." It's "These documents are confidential.")
I see an impending "be careful what you wish for" moment.
Stubborn Bush will now follow up by picking a tougher crony to hand it to. Expect an Alberto Gonzales to get the nod.
Petulant Bush responds to his critics by giving them just what they want, then fails to back it up. Expect a Janice Rogers Brown to be hung out to dry with no support.
Thoughtful Bush goes for a strong conservative candidate that can win, then starts hammering on opponents like he was hammering on allies last week. Look for a Douglas Ginsburg or a Michael McConnell to get the nod.
I’d love to be wrong and see Bush nominate and fight for Brown, but Bush has shown very little spine in 5 years so I don’t expect him to.
The media loves contraversy, they love a juicy story, and most importantly, they love smearing people. Getting them to pull a Kerry on some of the smaller dogs that geared up against Miers will do incredible damage to the Republican party in 2006. The idea that the qualifications even matter now will be lost, esp. given that Bush is now going to be forced to nominate someone who has a paper trail, and thus has said at least one contraversial thing.
Finally, it makes Bush look even more pathetic, having failed at his major political crisis, failed at his first nominee, and then failed in his second. In fact, it seems like a filibuster is the only way to prevent the GOP from coming out unscathed from the circus that has erupted since the nomination first was made.
Of course, that being said, knowing Dems, this means they'll give Luttig or even Estrada an up or down vote, just to screw themselves.
Did 51 senators swear under oath that they would reject Miers without these documents? Of course not. A few of them demanded the documents, just as they did with Roberts, where they were duly ignored, just as they easily could have been here.
This nomination wasn't going to be rejected for lack of documents. You actually believe this? Bush didn't take a stand here! He capitulated without fighting -- according to him. He said, "Oh, you want documents? I guess I'll pick somebody else then." You call that leadership?
Taking a stand (against the 3 people who demanded these documents) would have involved going through and demanding a vote in their absense. Why wasn't that possible?
Since you only added that it was Miers' own decision as an afterthought, I'm guessing you see through that as much as I do. Of course, if you believe she insisted, then there's nothing the White House could have done. In any case, considering that Miers' job is to promote Bush's policies, I think it's patently obvious the whole thing was orchestrated.
I don't know what kind of justice she'd make, but her hearings would sure be entertaining. =)
I want someone who is anti Roe but pro choice, one that would vote on principle (Thomas) and not on outcome (Scalia), and someone who favors personal liberty in all forms, economic and civil, over federal and state's rights.
About affirmative action: The whole debate about affirmative action is so convoluted because its advocates imply that striking down affirmative action would ban it. Few people stop to think and say, maybe we should just leave that decision up to colleges? You CAN advocate both AA and its repeal without paradox. I suspect colleges would be against repealing it though, as they may be forced to compete with the few colleges who thereafter opt not to practice AA, like how the French want to enact global labor standards.
Question: Is it possible to strike down anti-discrimination laws via the scotus? What exactly does free assembly mean? Does that not apply to/not mean freedom of contract? To assemble a company as you choose?
An ordinary nomination wouldn't be rejected for lack of documents. The nomination of someone with precisely zero paper trail -- no judicial opinions, no law review articles, no meaningful publications or non-ghostwritten magazine columns -- on the other hand, is a quite different story.
In the case of Roberts, the Senate had tens of thousands of pages of documents. Asking for more documents was a mere smokescreen, an attempt by Democrats to (a) find a flimsy excuse not to vote for him, or (b) find the one smoking gun where he said something racially insensitive that could be used to Bork him.
In the case of Miers, the documents were actually needed just to find out something about her.
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ANM:
Kozinski and no, respectively. I think Democrats would sell abortion down the river before they gave up the expanded view of the commerce clause.
An argument can be made for anything. Do you believe that's why she withdrew? You didn't answer that question. Do you think Miers withdrew as a principled stand?
I mean, sure, you can spin it as "There were never going to be enough documents to overcome all the evidence that she's incompetent." That's not really a document problem though.
If you accuse the Democrats of using documents as a cover now, I'm afraid it's going to sound a little like hypocrisy. For that matter, I think Bush has lost the right to make that claim as well.
Speaking as someone who agrees with David, I do not "think Miers withdrew as a principled stand". She was almost certainly told to withdraw her nomination; I don't think she has the imagination to do it on her own. Several media accounts of events on Wednesday and yesterday back this up.
The documents were indeed a cover with Roberts, but were a real problem with Miers. The "hypocrisy" (or, arguably, inconsistency) lies with the Democrats who made such a fuss over the need for more of Roberts' docs. It's the old story of the kid who cries "wolf"; this time the wolf was real. Fortunately for the feckless kid, a grownup was nearby with a shotgun.
I was relieved when Miers withdrew, for whatever reason. I honestly did not feel like she was highly qualified for the job at hand.
Now can we at least all agree that, no matter the political affiliation of the president, judicial appointees ought to be well-versed in the constitution, concise and clear in written communication, and familiar with the decisions, movers and shakers in the SCOTUS?