Thursday, October 27, 2005

Miers Withdraws!

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Charles Krauthammer predicted the exact exit strategy, using Senate requests for Executive Branch records and materials as an irresolvable dispute. Check out his WP column here. It's also perfect political timing. With the announcement of Indictments tomorrow this embarrassing story will be quickly swept out of the headlines.

Now the real fight begins, and President Bush has an opportunity to fire up his base during a period when he will desperately be relying upon their support. The Miers replacement will probably be an explicitly Conservative Judge, with a clear track record delineating a staunch originalist judicial philosophy.

Ironically, considering the recent controversy surrounding the Miers nomination, I believe this is potentially a sad day for the future of the Supreme Court. The triumvirate of rock solid Conservative judges: Roberts, Scalia, and Thomas... in all likelihood just became a quartet.

The Shortlist to replace Miers:

J. Michael Luttig:
Briefly worked in the Whitehouse before serving as a law clerk to Conservative judge, Antonin Scalia. He was appointed to the Fourth Circuit of Appeals by George H.W. Bush in 1991. Frequently mentioned by Conservative pundits as a reliable nomination with a proven track record in originalist judicial philosophy. If Bush wants to satiate his base as a means of re-invigorating his ability to win public arguments, plus improve his public standing, Luttig would be the most obvious pick, and a worst case scenario for Democrats.

Two years ago, he struck down the Violence Against Women Act, writing an opinion that Congress had overstepped its authority in establishing the legislation. Years prior he upheld a ban on partial birth abortion, reversing a lower court ruling, + also allowing Virginia to require parental notification before a teenager could obtain an abortion.

The main controversy surrounding Luttig is the fact that his father was shot and killed in a car jacking, which also involved his mother in the driveway of their Texas home. Defense attorneys have in the past asked him to recuse himself from capital cases because of the personal tragedy he suffered. He is an ardent, long time supporter of the Death Penalty.

"His reputation is one of an extremely smart, hard-line conservative," said Heather Gerken, an assistant professor at Harvard Law School, "even those on the left, who disagree with his politics, really agree that he is very, very smart."

J. Michael Luttig = Scalia mark II, and would create a powerful and intimidating Conservative alliance, alongside Scalia, Thomas, and Roberts that would surely threaten Anthony Kennedy's uncertain position in support of Roe vs. Wade.

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Priscilla Owen:
Nominated to the 5th Circuit, Court of Appeals, where Democrats successfully filibustered her nomination. She would be one of the most divisive and controversial picks, however, if Bush is really looking for a fight, which many Conservative Republicans have called for, then he really need look no further:

Her views on abortion: She supported the elimination and narrowing of buffer zones around reproductive health care clinics in Houston. + In every judicial bypass case that came before the Texas Supreme Court(bypass allows a young woman to obtain an abortion without notifying her parents if she proves her maturity to a judge), Owen voted against granting the young woman that right.

She supports "stricter interpretation" of the state law that Bush signed requiring girls younger than 18 to inform their parents before obtaining an abortion. She has been criticized as being on the "far right wing" of the Texas court, further to the right than Bush's own appointees to that court when he was governor.

The biggest controversy surrounding Owen involves Enron donating $8,600 to her successful 1994 bid for the Texas Supreme Court. Two years later, Owen wrote the majority opinion that reversed a lower court order and reduced Enron's school taxes by $15 million. Since 1993, Enron contributed $134,058 — more than any other corporation — to Owen and other members of the Texas Supreme Court.

Personally, considering the political turmoil currently surrounding the President, even considering the Conservative lust for a great judicial battle, I would be shocked if he nominated Owen. She provides Democrats with criticisms that could be far more resonant publically than those they could level at Luddig or others.

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Edith Brown Clement:
Clement also has a reputation as a Conservative jurist, and a strict constructionist, only with a less controversial track record. In fact her track record is so thin, in terms of opinions, that she could conceivably meet with a less than enthusiastic response from the Republican base if she is nominated by Bush to replace Miers. Many thought that she was very close to being nominated last time out... her nomination would paralell Miers in its ambiguity.

Interesting: According to The Orlando Report, "MSNBC is reporting that Clement has acknowledged that Roe v. Wade is settled law and within the constitutionally protected right to privacy. She apparently stated this at her last confirmation hearing."

Arguably, this is the nomination Bush should have made instead of Miers, applying the same "stealth candidate" criteria. The difference is that now the game has changed, and so has what the White House are looking for. Edith Brown Clement would not provide Conservatives with as extensive a judicial track record as other prospective nominees. I think Laura would like her though...

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Edith Jones:
A Reagan appointee in 1985, Edith Jones is an outspoken Conservative judge, frequently mentioned by Conservative pundits, like Bill Kristol, that have opposed Miers, suggesting her extensive track record is much more in keeping with the campaign promises that Bush made to his supporters. In her opinions, she has questioned the legal reasoning which legalized abortion, advocated streamlining death penalty cases, invalidated a federal ban on possession of machine guns and advocated the toughening bankruptcy laws.

Her most well known case, could be the center of an enormously divisive national debate if she is nominated: In McCorvey vs. Hill, which was a request by the original plaintiff of Roe v. Wade to vacate that finding, Jones joined the Fifth Circuit in rejecting the petition on procedural grounds, but took the unusual step of filing a six-page concurrence to her own opinion. The concurrence credited the evidence presented by McCorvey and sharply criticized the Supreme Court's ruling in Roe, calling it an "exercise of raw judicial power."

She said: "That the court's constitutional decision making leaves our nation in a position of willful blindness to evolving knowledge should trouble any dispassionate observer not only about the abortion decisions, but about a number of other areas in which the court unhesitatingly steps into the realm of social policy under the guise of constitutional adjudication."

The nomination of Edith Jones will put the abortion debate at the front and center of her confirmation hearings, with a fairly clear, outlined position on her part that Roe vs. Wade is untennable and should be overturned. Edith Jones is definately the anti-Harriet Miers.

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Alberto Gonzales
The contrarian point of view is that the nomination Bush would like to have made to SCOTUS is Attorney General Alberto Gonzales, and that, resenting the right wing sabotage of Harriet Miers, he will take this opportunity to push through his personal preference in spite of his supporters, instead of directly appealing to them. Republican Senators were already extending themselves today suggesting that Gonzales would not be appropriate, for similar reasons that they gave for doubting Miers. It seems sad that in many ways the core of the Republican Party have drifted so far to the right that they cannot support a moderate Conservative like Gonzales, even when he is the President's ideal nominee.

Admitedly his nomination is highly unlikely, but it is not all together impossible. It could form part of a calculation to reach out to the center and political mainstream ahead of the 2006 mid terms, upon which Bush's legislative agenda for his second term rests heavily. The Gonzales nomination, like Colin Powell and Condi Rice before, would be an historic step towards the diversity of the nation being reflected at the highest level of the land... Although, to be fair, this strategy hasn't exactly improved the Republican standing with African American voters.

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Maureen Mahoney:
From my perspective, Mahoney is the best possible nominee that I can expect as a Democrat. She has a great deal in common with John Roberts, serving beside him in the Solicitor General's office, plus clerking for Chief Justice Rehnquist. She is now a leading appellate litigator for the Washington, D.C., firm Latham & Watkins. Her credentials are impeccable.

Mahoney has been referred to as one of the finest oral advocates of SCOTUS... which I have to say sounds kinda kinky to me. She has a reputation as a judicial Conservative, and yet she successfully represented the University of Michigan Law School in 2003 in a case in which the Supreme Court upheld diversity as a rationale for affirmative action. Asked in a 2004 interview with the University of Chicago Magazine why she had taken the case as a staunch Republican, Mahoney said that her personal views weren't relevant but added, "I certainly was very comfortable with Michigan's position."

And yet, she has a solid Conservative track record:

From "Underneath Their Robes":

She was previously nominated for a federal judgeship under Bush I (but President Clinton took office before she could be confirmed).

She is Republican, and she was on the Bush II transition team (and made the maximum contribution allowable under federal law to President Bush's 2000 presidential campaign).

She was reportedly considered by the Bush Administration for the post of Solicitor General, before Ted Olson got the job, and also for a seat on the D.C. Circuit.

She was picked, presumably by the White House Counsel's Office or the DOJ's Office of Legal Policy, to testify on behalf of Judge Roberts at his recent confirmation hearings.

Nina Totenberg has described Mahoney as "a very, very conservative woman Catholic."

I think the subtext of being a "very, very conservative woman Catholic" means that she's pro-life... although, where I'm from being a Conservative Catholic usualy means drinking only four pints of Guiness as opposed to eight at the local pub... but I'm digressing.

Very impressive: Listen to her oral argument in the affirmative action case GRUTTER vs. BOLLINGER.

In conclusion, when assessing the type of Justice Harriet Miers would have been you have to apply a different context in assessing her personal views than that you might typically apply to a politician. On the Supreme Court, asserting dogma, or politics, requires an ideology with the integrity to withstand the scrutiny of intellectual heavyweights like Breyer and Scalia. In ten years time, when the political climate of the nation might be entirely different to today, do you really think that someone like Miers, who has supported Gay rights, affirmative action, social activism, etc... upon her honest, searching introspection would consistently resort to an entrenched Conservative judicial philosophy? A philosophy she has never has never articulated once in her entire career.

Of course she wouldn't have... With Harriet Miers the opportunity existed for another Souter, or Sandra Day O'Connor, hence the Conservative outcry, not from the Republican Party base, but from its most elite thinkers like Kristol, and Krauthammer, and George Will, all too aware of the potential for Miers to not fulfill Conservative expectations on the bench.

Perhaps the Miers nomination was doomed from the beginning, but in my opinion, Democrats could have, and should have done more to ensure her confirmation, making her withdrawal from the process more difficult. Relinquishing their requests for her Presidential records could have been a start. Instead of Miers the best we can now possibly hope for, in my opinion, is a more moderate Conservative coalition between Roberts, Kennedy, and hopefully Mahoney... a die hard originalist quartet of Scalia, Thomas, Roberts, and J. Michael Luddig would have disastrous implications for the rights that we believe the constitution guarantees as Democrats.

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Related News Articles:
Pat Buchanan: Miers withdrawal saves Bush.
WP: Conservatives will regret Miers withdrawal.
WP: Focus shifts to next nominee.
NY Times: Why the right was wrong.

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Jay said...

What is the world coming to?

Chris said...

This is really not a big surprise to me. Last week I wrote about this happening. It also should be noted that Miers will probably be leaving the administration altogether, probably within the next couple months.

I'm also not convinced that Miers would have been a moderate or even an independent Justice on the Court. She was nominated because she was someone Bush could control. She would have ruled in favor of the administration at every possible case. I also must maintain once more that none of it has anything to do with abortion. Because, like I have said a hundred times, parts of Roe was lost when the Dems lost in '04. The main reason for the Miers nomination was the Patriot Act. The same will be true for the next nominee.

But I do agree with you Graham, all of this tomorrow will be second page news. Thanks for always reading my site and leaving comments. And thanks for the space here.

M A F said...

I wasn't much of a believer in the SC nomination (or confirmation) of Harriet Miers. Bush never offered the hard sell of Miers; nor does it seem that he expected his religious base to become so opposed to his choice despite his knowing she has a good heart.

I figured that it was a race between her and Rove to resign and she is definitely the 'winner.'

It seems to me that Miers stepping away from the nomination would have been a story of possible deflection should Fitzgerald decide to indict members of the Bush administration. Surely she could have served as a media foil to what could be a dark day for the Bush administration.

Alice: In Wonderland or Not said...

This was plain and simple the right thing to do regardless of what follows. She was not qualified; if she was she would have been able to stand up to all that came at her and been willing to answer the questions that were going to be put forth.

I too have no illusions about her being in anyway a moderate voice; I don't believe it for a minute in fact.

A good heart does not a Supreme Court Justice make and as to how good her heart was ... well we know only one thing it had a soft spot for Georgie Boy.

Graham said...

Thanks for all your comments everybody :)

MJ, how can Bush control her on the court? When Bush is out of office what do you think will have more influence, her fellow justices, her honest assessment of cases, or GWB? There is no way she would have stuck rigidly to his expectations IMO. I agree with you about the fact if Roe was lost with these appointments then it was lost in 04, but I don't think that means as Democrats we should just let another Scalia get on the court if we have the power, and position to put someone less adherent to Conservative doctrine on instead.

You're welcome MJ, I appreciate your take always. Thanks for putting up with me on your blog :).

Hey MAF,

I definately agree the impending indictments formed part of the rationale for this. Thanks for the comment my friend :).

I disagree with you Alice. If we get Ludig or Edith Jones this will have been the wrong thing for a whole host of rights that we believe the constitution guarantees. The point isn't that she's a moderate voice, the point is that you have to be practical, and judge her within the context of the other nominees. Miers was the best possible scenario for Democrats, on that, with Harry Reid I finally agree.

M A F said...

After reading through your analysis of potential Supreme Court nominees I am reconsidering the potential benefits of cronyism.

After Miers are the Republican's really interested in putting another woman on the Supreme Court? During the Robert's nomination questions about the role of religion were discouraged. In contrast, there were many questions with regard to the role religion played in Miers' life. Will the next female nominee face similiar scutiny?

Of the six candidates you have outlined and when noting the 3:1 ratio of women to men it would seem that the chances of Bush choosing a woman would be very high. Only Bush is suffering from lots of negative press and he needs a nominee that can create some favorable press and Alberto Gonzales is that nominee. Gonzalez offers Bush a chance at history, the appointment of the first latino/hispanic SC Justice. Rove, Plamegate and the Iraq invasion would disappear from the front pages. If only for a few days.

How far the religious right is able to influence the next step could be a big factor in determining the next nominee. But alas the reason I come to your site is because you are the cognoscenti while I am just cognisant.

Lisa said...

Good analysis as always. I hope your pessimism is well-founded in this case. You have convinced me that Luddig's the guy to tick off the most Democrats. So I am absolutely in favor of that. LOL. My opinion on that shouldn't shock you.

Miers was doomed on several levels. The first was the experience factor. Both sides were finding her lacking in that department. The second factor is that there wasn't enough in Miers' history to figure out what exactly her judicial philosophy was. There were a few clues to it, but nothing concrete enough to convince anyone exactly what she would do as a Supreme Court Justice.

While I will not dispute that many conservatives may have been concerned more about her judicial philosophy than her lack of experience, having questions about both was a serious problem in her case. When both sides can't support your pick, it's hard for that pick to get confirmed. The next nominee Bush chooses has to have the support of conservatives to get confirmed. Like it or not, that's political reality.

No doubt the religious right will have influence on the President's choice. They always have had that influence. On the other hand, if he had actually been taking the suggestions of his conservative base, I believe the Miers pick wouldn't have happened in the first place. He would have picked some conservative nominee who was much more scary to the Democrats.

And...just for the record,I believe you may be referring to Bill KrIstol. No Y. :P

Graham said...

Hey MAF,

Thanks for your kind words. I Agree that nominating Gonzales does present Bush with some political opportunities. While it's an unlikely possibility I wouldn't entirely rule it out. You're totally right... it really does come down to the power the right wield over this process. I think Luddig would definately rally Bush's base.

Thanks for the comment my friend :).

Hey Lisa,

Sorry about the Kristol mispelling, it will be fixed... I think that Bush's calculation with Miers was fair, but he should have considered her lack of experience and serious credentials. What makes her nomination even more crazy is Edith Brown Clement, who seems to be just as much of a stealth nominee as Miers, with very little track record exposing her to partisan attacks. She would however, by contrast, be much more difficult to criticize on the question of her expertise and ability.

It will be interesting to see who the President turns to. I'm still hopeful it will be Mahoney, in spite of what Brit Hume said about the White House uncovering a history of activism on her part. Her arguments in GRUTTER vs. BOLLINGER were very inspirational.



JollyRoger said...

Expect somebody from Jesusistan.

El Shrubbo has pretty much shot up all his other support sources. I expect to see him tilt ever-further towards Jesusistan in the days to come.

Graham said...

I think we'll find out pretty soon Jollyroger. I don't think Bush will want to hang around on this.

Thanks for your comment :).

Graham said...

The latest news is that Samuel Alito
will be the President's nomination in replace of Harriet Miers. I do not know much about him other than the fact that his nickname was "Scalito" because of ideological resemblence to Antonin Scalia... which, while I have the utmost respect for Scalia... isn't a good thing in my opinion. Doesn't bode well on the face of things.

Graham said...

Yup, Bush picked Scalito