Sore Miersians, Foiled Donks, & The Next Pick

Somebody needs to get to Hugh Hewitt and get him to realize how far off the right-wing reservation he has strayed. Not only is his sour grapes grousing over the mercifully withdrawn Harriet Miers SCOTUS nomination sounding increasingly similar to the wailing & gnashing of teeth from disappointed Democrats, but he's now getting his columns (or at least this one) published in the New York Times:

Over the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush's nominees deserved an up-or-down decision on the floor of the Senate. Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.

Mule fritters. Had Miss Miers stuck it out and gone through with her confirmation hearings, she would have gotten an up-or-down floor vote. And, as Bill Frist told the President on Wednesday night, that was an up-or-down vote that she would have lost. Badly. Which was why her nomination was withdrawn the next day.

I'll buy the "instant" and "fierce" adjectives, but there was nothing "false" about the "assault" on this mystery meat pick. Indeed, as information about Miss Miers gradually trickled out, she turned out to be even worse than we expected at first glance. 'Twould be nice if Double-H would at least acknowledge this fact, even if it does indicate that we were right and he was wrong.

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

Again, we did not "exaggerate" or hurl "invective" - at least not at Miss Miers. Personally my ire was aimed far more at the President for his rank betrayal of a core promise of both his campaigns, and his use of left-wing tactics like feminist pandering and "diversity"-mongering, than anything the nominee ever did or said.

Of course, it is difficult to "exaggerate" when there is so little to examine in the first place. This goes far to explain the "unbroken stream of new charges" that weren't "charges" at all but simply revelations that sprang from the White House's piss-poor vetting of its nominee. Had the President not threw aside his objectivity in selecting his close confidante that vetting process would have caught all the "charges" that, as it happened, slammed into the Miers nomination one after the next until it finally sank. That's what he gets for ducking a fight with the people we elected him to take on.

Hugh is also wrong about the "hypocrisy" angle. Democrats will always assault any credibly conservative judicial appointment. Harriet Miers didn't fit this description, and you'll notice that the Democrats "held their fire" by their own admission. This was another reason why the GOP base revolted, and for a gratifying change, Republican senators took heed. True, none of them publicly called for Miers' withdrawal, but they didn't have to, and as the events of Wednesday and Thursday bore out, they got their message across.

Why this should make mortal senate combat over the next originalist nominee more difficult frankly mystifies me. The Bork parallel fails here for one very basic reason: the attacks on Judge Bork eighteen years ago were caustic, lying smears, whereas the criticism of Harriet Miers' candidacy was honest, thoughtful, and substantive. Fifteen years ago we said, "NO MORE SOUTERS!" Dubya gave us another stealth pick. We didn't stand for it. Simple as that. Just as if he now appoints a constitutionalist to the O'Connor seat, we will cheer and enthusiastically man the barricades for him/her with honest, thoughtful substance, while the Democrats try to destroy him/her with caustic, lying smears. And their attempts to call us "hypocrites" - doubtless citing Hewitt's arguments - will be just another futile tactic, providing the newly constituency-conscious Republican majority does what is necessary to get the new nominee confirmed.

If Hugh seriously believes that a Luttig or Alito or McConnell will withdraw at Democrat insistence, he evidently hasn't thought through the implications of his labored stance.

And will other nominees simply pass on the opportunity to walk out in the middle of a crossfire? A White House counsel with distinguished credentials was compared to Caligula's horse and Barney the dog on National Review's Web site. George Will denounced as "crude" those evangelicals who thought Miss Miers's faith was a good indication of character in a nominee and a hopeful sign on issues involving the unborn. She was labeled a crony before lunch on the day of her nomination by scores of commentators. Attacks on her competence within the White House followed immediately. She never had a chance, really.

Since when did Hewitt get so thin-skinned or lose his appreciation for the witty metaphor? The "Caligula's horse" and "Barney the dog" cracks were sarcasms in service of a valid criticism of the cronyism the Miers selection represented and the track record of mediocrity in Executive Branch appointments of the President's friends and hangers-on. And George Will didn't denounce the minority of Miersian evangelicals as "crude," but the argument people like Hewitt made conflating Miers' religious faith with her phantom judicial philosophy. And as subsequently came out, she not-so-ambiguously and quite enthusiastically endorsed judicial activism four years after filling out the questionnaire during her run for Dallas City Council endorsing a Human Life Constitutional Amendment. Once more, we were right and Hewitt was wrong.

Well, Hugh is right when he says that Miers "never had a chance." Which only underscores why she never should have been appointed to begin with, and why the majority of the Republican grassroots objected from the day of her nomination.

Bush made a mistake. A big one. If he can concede it by pulling Miers, why can't Double-H?

The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle.

"Standards" that have no direct or logical connection to the Constitution are not fairly or honestly describable as "extraconstitutional." The Constitution doesn't specify that only judges can be appointed to the SCOTUS, but neither does it say that anybody can. It is silent on the matter, which means, so far as that document is concerned, well, anybody can. But that has no bearing on whether or not "anybody" should. And that gets back to the Senate's advice & consent function, which was intended by the founders to ensure quality judicial nominees.

Apparently Hugh thinks otherwise. I don't know if he always has or if this downgrading of Supreme Court Justiceship to entry-level job status akin to hamburger-flipping on the graveyard shift at the waffle house is just a petulant overreaction to the Miers debacle. I'm guessing the latter, inasmuch as Hewitt was tub-thumping for Judges Luttig and McConnell before all this fuss began, and nobody could call those two distinguished jurists off-the-street ham & eggers.

This speaks to the bad precedent Hugh himself is trying to set that would only serve to entrench mystery meat-ism. Nobody has to play guessing games about the personalities and judicial philosophies of established judges because they have a body of rulings that any and all can consult. Like 'em or don't like 'em, with an Edith Jones or Emilio Garza or Janice Rogers Brown you know what you're going to get. Whereas a non-judge is a crap shoot depending upon who it is. A law professor, for example, will probably have a significant paper trail to provide the requisite clues as to ideological bent and judicial temperment; with a politician you'd get the former if less so the latter; but with somebody like Harriet Miers who is a complete cipher, and who is a close presidential aide and thus under the umbrella of executive privilege, blacking out access to internal White House documents that might shed desperately needed light on who and what the nominee is, there simply is no way that senators can responsibily exercise their advise & consent responsibilities under the Constitution behind which Double-H tries to hide his self-pitying pique.

And aside from all that, the notion that being one of the top nine individuals in the entire legal profession ought not at least argue for previous judicial experience - particularly since its absence only enhances the risk of newly minted Justices morphing into "philosopher-kings" - just rubs me the wrong way. And that's not "elitism," but a staunch belief in meritocracy - something else that I had thought Hugh Hewitt believed in.

The center of the Miers opposition was National Review's blog, The Corner, and the blog ConfirmThem.com, both with sharp-tongued, witty and relentless writers. They unleashed every argument they could find, and the pack that followed them could not be stopped. Even if a senator had a mind to urge hearings and a vote, he had to feel that it would call down on him the verbal wrath of the anti-Miers zealots.

I didn't think Hugh was a practitioner of whining, either. I dunno, maybe this is his version of a mid-life crisis.

I can't help wondering why, since no Republican senator called publicly for Miers' withdrawal or defeat, they would have needed to urge hearings and a vote. Or how the term "zealot" doesn't apply far more to a cause as bereft of persuasion and awash in blind emotiveness as the Miersians' was.

And still, apparently, is.

It will be the lasting glory or the lasting shame of The Corner and others involved in driving Ms. Miers from the field, depending on what happens, and not just with the next nominee and his or her votes on the court, but all the nominees that follow, and all the Senate campaigns that will be affected, as well as the presidential race in 2008.

If the President now does what he should have done four weeks ago and appoints a stud (or studette) constitutionalist, "The Corner and others involved in driving Miss Miers from the field" may have saved GOP control of the Senate a year from now.

This triumph of the conservative punditocracy will have lasting consequences, and I hope my fears are misplaced. The first returns will come in the decision on parental notification statutes that will be argued before the Supreme Court in late November. Absent a miracle of Senate efficiency, Justice Sandra Day O'Connor will cast one of her last votes on the most important abortion-rights case in a few years.

Such heroic nonsense and misplaced faith. Even if Miers had stayed the course and somehow gotten confirmed, all the turmoil surrounding the process - to say nothing of "non-miraculous Senate efficiency" - would have kept her off the Court past the case Hugh references. And if she had somehow whirlwinded through in record time, the balance of her meager background suggests she'd have ruled precisely the way he fears O'Connor will.

Didn't Hewitt consider himself a member of the "conservative punditocracy" not too long ago? No longer, it would seem. Ditto his understanding (assuming he ever did) that it is ideas that are supposed to drive parties, not parties that exist to squash ideas.

And "My president, right or wrong" is not an idea.

~ ~ ~

In the mean time, we've moved on to the next nomination, even if the Miersians won't. And the Democrats are still trying to put themselves over as a faux majority:

Senate Democrats are trying, once again, to "reach out” and "help" President Bush with his next selection to the U.S. Supreme Court.

As with White House counsel Harriet Miers – a trusted Bush confidante who withdrew her nomination Thursday – Senate Minority Leader Harry Reid (D-NV) hopes to s[windle] the President [into] a[nother] "consensus nominee.”

Fool me once, shame on you; fool me twice, shame on me....

[O]nce again, Democrats are trying to have their say and their way regarding a Supreme Court appointment. Reid and Senator Patrick Leahy (D-VT), a Senate Judiciary Committee member, penned a letter to the President Friday where they strongly urged him "to refrain from nominating to the Supreme Court any of the handful of judicial nominees who were filibustered during the past four years, or any other similarly divisive candidate.”

I.e. a constitutionalist.

"We urge you to pick one of the many qualified mainstream women and minority candidates who can win widespread bipartisan support in the Senate and among the American people.”

I.e. someone like Harriet Miers.

Someone needs to remind these Democrats that they are the minority party.

Indeed. Someone like...Orrin Hatch?

On the question of a filibuster of possible conservative nominees like Michael Luttig or Sam Alito, Hatch said, "These are people who have great dimension and great caliber in the law - Michael Luttig is the perfect illustration - but if they want a filibuster, we're gonna have to take them on."

"There's really never been a leader-led partisan filibuster in the history of our country with regard to Supreme Court nominees," Hatch said, "or any other member of the judiciary, and I think we're just gonna have to take them on."

"We're not going to put up with that," he added emphatically.

Wow. I hope his bite matches his bark, and is at least fifty-strong. That's a message that is definitely needed to re-stiffen the President's spine as he contemplates Harriet Miers' replacement.

While John Fund and NRO are talking up SEC boss and former GOP congressman Chris Cox - who, for the record, has never been a judge and is someone I would support - the inside word (for whatever that is worth) is that the next Associate Justice of the U.S. Supreme Court will be [drumroll, please] Samuel "Scalito" Alito:

Multiple sources are telling RedState that Samuel A. Alito, Jr. of the Third Circuit Court of Appeals will be named by the President at the next associate justice of the United States Supreme Court as early as Monday....

"Luttig and Alito were the fall backs to Miers. They have both been vetted. Alito seems more palatable. There is no need to drag this out, he's been vetted a million times."

And yet another source tells me that he is convinced Alito is the nominee barring some last minute unforeseen issue. All signs are pointing to Judge Alito right now. Things could change, but as the weekend draws closer it seems more and more likely that Judge Alito will be the nominee and conservatives will have a fight on their hands in the Senate - a very winnable fight.

Sounds good to me.

I know Alito's no Harriet Miers, but how about you, Hugh?