Bush Runs Away
And here's what will have killed it:
President Bush on Monday nominated White House counsel Harriet Miers to replace retiring Justice Sandra Day O'Connor on the Supreme Court, reaching into his loyal inner circle for a pick that could reshape the nation's judiciary for years to come.
And here I was all ready to make my prediction of Maureen Mahoney as the President's pick to replace Sandra Day O'Connor.
As Ed Morrissey reported yesterday, Mahoney, who testified on John Roberts' behalf in his confirmation hearings, is essentially the Chief Justice in a skirt:
A quick check into her background could generate some interest, as she not only resembles John Roberts in her background, but could even negate some of the smears launched against Roberts early in the confirmation process.
Mahoney litigates for Latham & Watkins as a partner specializing in appellate law. Like Roberts, she has experience before the Supreme Court, having argued thirteen cases....
Mahoney has similar tenure within the U.S. government as Roberts as well. She served with Roberts in the Bush 41 administration in the Solicitor General's office for a couple of years before getting a nomination to the appellate bench herself, one that went nowhere before Clinton took office, when she returned to L&W and continued her distinguished career as an appellate specialist....
Also, like Roberts, Mahoney clerked for William Rehnquist prior to his elevation to Chief Justice. Mahoney never served on the bench, while Roberts had less than two years, but no one has insisted on appellate experience for a Supreme Court justice.
The last bit clinched it for me. If the President had a template that was personified by John Roberts - Rehnquist disciple, constitutionalist without a long paper trail, and experienced high-level courtroom combatant, which is necessary in contemporary confirmation wars, as we just saw a couple of weeks ago - and wanted a woman to fill the O'Connor vacancy, he couldn't do any better than Maureen Mahoney. And while I was of the opinion that after the degree to which the President and GOP congressional leaders buried themselves with their center-right base after Hurricane Katrina, Bush really did need to go with an avowed constitutionalist like a Luttig or McConnell or Jones or Garza to stop the bleeding, I figured that selling a Mahoney pick wouldn't be beyond his capabilitities.
Not so with Harriet Miers. That pick ain't getting over. And my morning surf through the blogosphere proves it.
To be fair, I'll start with the few positive right-wing reactions, which can all more or less be boiled down to "trust Dubya, he knows what he's doing":
Hugh Hewitt (natch):
Harriet Miers isn't a Justice Souter pick, so don't be silly. It is a solid, B+ pick. The first President Bush didn't know David Souter, but trusted Chief of Staff Sunnunu and Senator Rudman. The first President Bush got burned badly because he trusted the enthusiams of others.
The second President Bush knows Harriet Miers, and knows her well. The White House Counsel is an unknown to most SCOTUS observors, but not to the president, who has seen her at work for great lengths of years and in very different situations, including as an advisor in wartime. Leonard Leo is very happy with the choice, which ought to be enough for most conservatices.
Evidently not, as we shall see. And after Double-H himself did more tub-thumping for Luttig and McConnell than anybody else, as well as express boundless confidence that the President would make so bold and in-Dem-faces a selection, look at how easily he tosses them overboard:
As I wrote last night, Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years.
In other words, the epoxy that Hugh's lips secrete will keep them securely affixed to GDub's caboose no matter how badly the President screws up.
NRO's Richard Garnett:
...President Bush and his advisors...believe that Ms. Miers is a judicial conservative.
I yield to no one in my respect for the "farm team" — McConnell, Alito, Luttig, etc. — but I am also surprised that some are so quick to assume that this President, who fought hard to get home-run judges Pryor, Owen, Colloton, Brown, McConnell, Sutton, Roberts, etc., confirmed to the courts, would suddenly drop the constitutionalism-ball just to be nice to an old friend or to satisfy those demanding another female justice.
It's not an assumption; it's an observation.
Garnett continues:
"This is a White House — and, more particularly, this is a White House Counsel's office — that is well stocked with very smart conservative lawyers, who understand that few things are as important to a President's sucess, and few tasks are as central to his constitutional obligations, as judicial nominations. Whatever our complaints might be about some of this President's decisions, I do not think he has ever given conservatives anything to complain about when it comes to judges and Justices.Until now. Really, the above is little more than excuse-making question-begging. If this White House is so "well-stocked with very smart conservative lawyers who understand that few things are as important to a president's success" - particularly this one - "as judicial nominations," then they had to know that it was imperative that Mr. Bush swing for the fences with a Luttig, a Jones, a Garza, etc. They had to know that the base was looking for the President to keep his promise of appointing Thomas' and Scalias to Olympus, and was spoiling for a very winnable partisan/ideological showdown with a Democrat opposition that would have been cornered into a filibuster fight that could have finished off that tactic, their unpopular obstructionism, and any realistic chance of a Dem restoration in 2006 once and for all.
Instead we get God-knows-what, a wink, and a "trust me."
Maybe if Bush's political circumstances were in a lot better shape he could have slid that by without a major rebellion in conservative ranks. But this isn't late 2001-early 2003. And Garnett's argument that, "President Bush clearly believes that Harriet Miers is a conservative, who does share the commitment of Justices Scalia, Thomas, Rehnquist, and Roberts to a democracy-respecting understanding of the Constitution," misses the point. It isn't enough for President Bush to believe that Harriet Miers is a conservative, even assuming that was a consideration in his choice; it wouldn't even have been sufficient for President Bush to KNOW that Harriet Miers is a conservative. Harriet Miers had to BE a conservative, an identifiable and avowed one, and one that would have sparked the full-scale Donk banzai charge, the avoidance of which was clearly Bush's #1 objective. And Harriet Miers clearly does not fit that description.
How can I say that? Look who has enthusiastically endorsed this nomination:
The expected political brawl over President Bush’s second Supreme Court nominee might not ever take place – because it was a powerful Democrat, Senate Minority Leader Harry Reid, who had urged her selection....Harry Reid dictated this choice to President Bush, folks. He engaged in full-scale "nuclear" brinksmanship, and the man we twice elected on the explicit premise of reclaiming the federal judiciary from left-wing oligarchy folded like a K-Mart deck chair.
After the nomination was announced, Senator Reid issued this statement:
"I like Harriet Miers. As White House Counsel, she has worked with me in a courteous and professional manner. I am also impressed with the fact that she was a trailblazer for women as managing partner of a major Dallas law firm and as the first woman president of the Texas Bar Association.
"In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.
"I look forward to the Judiciary Committee process which will help the American people learn more about Harriet Miers, and help the Senate determine whether she deserves a lifetime seat on the Supreme Court.” [emphasis added]
And the grassroots are not happy. David Frum sums it up best:
The Miers nomination...is an unforced error. Unlike the Roberts's nomination, which confirmed the previous balance on the Court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades - two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession....
Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either.
The Senate would have confirmed Luttig, Alito, or McConnell. It certainly would have confirmed a Senator Mitch McConnell or a Senator Jon Kyl, had the President felt even a little nervous about the ultimate vote. There was no reason for him to choose anyone but one of these outstanding conservatives....So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?
I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left. This is a chance that may never occur again: a decisive vacancy on the court, a conservative president, a 55-seat Republican majority, a large bench of brilliant and superbly credentialed conservative jurists ... and what has been done with the opportunity?
I am not saying that Harriet Miers is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have good reason to believe either of these things. In other words, we are being asked by this President to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant....
Post-Katrina, the Bush Administration feels politically vulnerable. As the saying goes, it's "reaching out." I am all for reaching out where it is appropriate....But the Supreme Court is exactly the place where the President should draw the line. The Court will be this President's great lasting conservative domestic legacy. He has chosen to put that legacy at risk by using what may well be his last Supreme Court choice to reward a loyal counselor. But this President, any president, has larger loyalties.
And those to whom he owed those loyalties have reason today to be disappointed and alarmed. [emphases added]
It appears my worst-case scenario, or something close to it, has been realized:
9/5/05 - There is, though, a caveat to be raised as a counterpoint: that the President, in selecting Judge Roberts to ostensibly replace Justice O'Connor, was really picking him to succeed Chief Justice Rehnquist, whether or not he died this soon. Yeah, that sounds redundant, but permit me to explain.Of all the times to be right, why did I have to be on this?
One of the things that so relieved and cheered conservatives - well, most of us, anyway - about the Roberts pick was that it showed that GDub wasn't letting himself be bound by the notion of the O'Connor seat having to be filled with another "moderate" and/or another woman. Just as Bill Clinton replaced the center-right Byron White with the ultraleft Ruth Buzzy Ginsberg in 1993, so his successor was replacing a center-left female with a staunchly conservative male.
However, if the Bush blueprint was to replace Rehnquist with Roberts, even if the picks and resignations didn't occur in that order, that suggests the possibility that the President, now that he's scooted Roberts over to the Chief Justice slot, may proceed to replace Justice O'Connor with another female jurist of the exact same type.
9/20/05 - But there is a caveat to be mentioned. The consensus on Roberts was that he is another Rehnquist, which suggests that he was appointed in the wake of the
O'Connor retirement with the Chief Justice slot in mind. Since that was a "stability" pick, and since Leahy made his public announcment supporting Roberts after having met with the President today, might that not suggest a quid pro quo in which Bush will end up picking a squish...to keep the O'Connor seat where it currently resides?
9/27/05 - I fervently hope I'm wrong about this, but as I look back over the past few weeks, it's looking like the President's bona fide post-Katrina troubles began right about the time that he caved to left-wingnut pressure and heaved his FEMA boss overboard. Before that he was soaring above the press's slimeacane unscathed; after it there was blood in the water, and he defensively spit out that "Second Louisiana Purchase" speech like a brick without indicating a way to offset the additional mammoth spending figures, and his base support started evaporating. If that negative mojo holds, he'll offer up a squish to replace Justice O'Connor, and the whole Bush ship of state will go spiralling out of control. [emphases added]
posted by JASmius at 11:07 AM
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