Rightank

Today, in defense of Harriet Miers nomination, First Lady Laura Bush stepped out and said that the lynch mob conservatives who oppose Miers ascension to the Supreme Court are possibly a bunch of sexists. Captain Ed on Captain’s Quarters responds in part:

Perhaps people haven’t looked at her accomplishments because this White House has been completely inept at promoting them. We have heard about her work in cleaning up the Texas Lottery Commission, her status as the first woman to lead the Texas Bar Association, and her leadership as the managing partner of a large Texas law firm. Given that conservatives generally don’t trust trial lawyers and the Bar Association and are at best ambivalent to government sponsorship of gambling, those sound rather weak as arguments for a nomination to the Supreme Court. If Miers has other accomplishments that indicate why conservatives should trust Bush in her nomination, we’ve yet to hear that from the White House.

Instead, we get attacked for our supposed “sexism”, which does more to marginalize conservatives than anything the Democrats have done over the past twenty years — and it’s so demonstrably false that one wonders if the President has decided to torch his party out of a fit of pique.

Isn’t conservatism your cause, Mr. and Mrs. Bush? It’s more that a little frustrating that the Presidential couple and their representatives have taken a liking to labeling substantive argument sexist when the sexism charge doesn’t hold water. Mr. President, do you really think that the magazine you honored last week is full of a bunch of stealth sexists who are foaming at the mouth with chauvinistic anticipation of any opportunity (like the Miers nomination) to denigrate women? Do you really believe that conservative bloggers who oppose Miers (or even question the propriety of her nomination) are so intellectually inept that they need to resort to such a Deanian argument? (Unfortunately, as Jonah Goldberg has found out, even some of “fellow” conservatives are drinking too much Kool-aid regarding their own Miers position).

The conservative cause is more than the Republican party and more than a President. President Bush’s (and his wife’s) willingness to laud Harriet Miers’s ability to win a lawyer’s version of High School Student Body President when she was elected President of the Texas Bar Association–instead of her legal acuity (heaven forbid!)–proves that Miers is an accomplished nominee rather than a qualified one. There were plenty of lady jurists or attorneys who have demonstrated both a level of competence and committed conservatism that myself and other conservatives would have been willing to fight for and accept.

President Bush–who is incapable of using his veto power to disgorge a spend-happy Congress–can expend plenty of energy, even roll out his wife in defense of his quota nominee. However, his attempt to veto the conservative opposition will not work. Miers is a friend and nominee to Bush and it appears that she’s more a friend and less a nominee than W. and the First Lady would like to admit.

According to Arlen Specter, I’d be considered part of the conservative lynch mob that’s attacking the Harriet Miers nomination. There’s nothing like showing your true colors, Arlen. Frankly, I’m glad to be held in such negative regard by a liberal like Specter, who favors abortion and the gay rights.

Initially, I had reserved judgment on the Miers nomination (despite my non-elitist distaste) until the nomination hearings. But, after reading what Judge Robert Bork opined on Tucker Carlson’s program (Judge Bork is my favorite legal scholar), I’ve decided to put my trust in Bork and oppose the Miers nomination.

Judge Bork called the Miers nomination “a disaster on every level.” Shucks Mr. President, even your misinformed praise of diversity qualification deserves the disaster label. Bork slams Miers qualifications:

Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever.

Very true. I wonder if Bush thought about that as a qualification?

Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by.

A little late? Actually, too late. Miers is definitely behind the constitutional 8-ball and will likely remain so for years. In the meantime, she’ll be cuddled and cajoled by the liberal members on the Court (including Kennedy) to side with them. Miers constitutional ineptness will likely result in a change from her current judicial philosophy because that philosophy is not jurisprudentially-based but ideologically-based. Scalia and Thomas’s originalist views pre-confirmation were based upon their expressed jurisprudential philosophies which guided their ideological leanings. Miers is just the opposite–an “conservative” with ideological leanings but no jurisprudential philosophy. (I’m sure she’s working on it right now). In such a position, she is likely to be influenced and goaded by the polished, irreverently plush jurisprudential philosophies of Ginsburg and Stevens.

I don’t expect that she can be, as the president says, a great justice.

Ouch. Bork is right. Miers will not compete with Roberts or Scalia intellectual fortitude and likely lacks the originalist tenacity of Thomas. Miers would be a constitutional work-in-progress if confirmed and her workproduct might not be to the liking of conservatives who were promised Scaliaian nominees.

Bork’s prediction on the outcome of the Miers confirmation vote is telling and worrisome:

I think they’re probably pretty high [the chances of Miers’s confirmation] because—and this should give the president some pause—they’re pretty high because the Democrats seem to like her.

I hope that the Miers nomination will be withdrawn and a verifiable, qualified conservative jurist or attorney would be appointed in her place. If that doesn’t happen, I’m not sure Miers will be confirmed. However, if she is confirmed, I believe that more Democrats than Republicans will vote for her. Many Democrats will likely use the hearings to embarrass conservative oppositionand values rather than ask probing and prickly questions. Then, after they’ve done as much damage to conservatives as they can, they’ll give Miers two thumbs up and put her on the Court. Why?

Miers is an unverifiable conservative who likely supports affirmative action and has not voiced any disapproval on gay marriage. She is a mediocre nominee if one looks at those men and women who the President bypassed. Likely, President Bush would appoint someone who has been an outspoken conservative if the Miers nomination were to fail. Thus, Democrats are getting the best they’re going to get from the Bush White House–and that’s bad news for conservatives, the Constitution, and the conservative mob waging a war of words against the Miers nomination.

I’m a little weary of posting regarding Miers. However, David Frum’s cautionary piece on NRO is outstanding and worth more than one read.

Also, Jerome Corsi authored a piece on WorldNetDaily.com that describes a $22 million dollar settlement that Miers’s firm dished out for their representation of a convicted Ponzi schemer. I doubt Miers will tout this part of her managerial experience during confirmation.

In today’s Wall Street Journal (registration req’d), Senator John Cornyn offered his defense of why Miers is a great nominee and why conservatives should be happy that she was Bush’s preferred pick.

His arguments are essentially repeats of what Bush stated when he introduced Miers to the world. Cornyn says that she’s in touch with the American polity. Why? Because she hasn’t been a judge. She’s been looking out for the rights of others in state and federals courts as a trial lawyer. This litigation experience tends to engratiate her to the public. Miers “understands the consequences of [The Supreme Court’s] decisions on the American people.” So what? Do you think that if the Court were composed of more judges who “understand” the American public that Lawrence would not have happened? There are plenty of lawyers who are pro-abortion, pro-gay marriage who are also understand consequences of court decisions. Moreover, the merits of the “understands real Americans” argument is more applicable to the liberal members of the Court and not the conservatives (currently Scalia, Thomas, and hopefully Roberts). The liberal justices (Souter, Breyer, Ginsburg, and Stevens) and (O’Connor and Kennedy–on social issues) are the ones who displace the conscience and will of the public expressed through their elected representatives and impose their own policy preferences. They are the ones who flubb their noses at our Constitutional contract and look to “established international principles” to interpret the People’s document instead of the written text. Scalia and Thomas were already judges when nominated and that has not impeded their ability to understand the ramifications of a Supreme Court decision.

In addition, Cornyn argues that Miers is a real trailblazer for women. Big deal. So are many other women attorneys. I’m sure Ginburg’s rise to the top of the ACLU could be described as “trailblazing,” although from a different ideological and corporate track. Being the president of a bar assocation (apart from the association with liberal utopian lawyers) is like being student-body president–no intellect required, but you need to be good at hobnobing and refrain from slurring your speech. There are plenty of qualified women jurists like Owen, Brown, and Clement who are trailblazers in their own right, yet they are proven conservatives. Miers is not a proven conservative woman trailblazer, which is the kind of trailblazer that deserves the President’s nod to serve.

And, that’s about it. She didn’t go to a Ivy League school, so what. That’s really not important. What is important is that she possesses the intellectual acuity to withstand the time-driven pressures associated with being a Supreme Court Justice. Miers might possess such an intellect, but will the American people be capable of judging that from her mouth alone during the confirmation hearings? She’s got a heckuva resume. So what. So did Justice Souter.

It is hard to defend Miers right now other than by asserting that we should trust President Bush. Presidential trust far to often fails as a reliable indicator of a Supreme Court nominee’s eventual jurisprudence. The stakes are too high to roll the dice on trust.

Conservatives who find themselves defending the Miers nomination from other conservatives (like me) are fond of using the futuristic catch-all argument of “No one knows how a nominee will decide cases” after confirmation. In other words, Miers could end up being like Souter or Kennedy, but it’s impossible to predict a justice’s movement from the right to the left when on the Court, so Bush’s assertion that she is conservative is good enough.

This argument doesn’t fly, however. When Reagan nominated Judge Robert Bork to serve on the Supreme Court, he was originalist and a social conservative. He believed that Roe was an opinion without constitutional basis (which it is). Everyone believed that he would stick to his core values while on the Court, which is why the Democrats feared him like the plague. You can look at his writings both before and after his nomination (I highly recommend Coercing Virtue: The Worldwide Rule of Judges) and you can see his consistent judical philosophy. The “No one knows” argument only works when you don’t have a sufficient record of opinion writing or other intellectual literature written by the nominee that gives the American people reassurance the nominee will adhere to his jurisprudential values as a Supreme Court Justice. Miers simply does not have a stellar written record and it is highly unlikely one will be found.

Conservatives were hoping for a nominee like Bork, someone who is socially conservative, an orginalist, a brilliant (not just average) legal mind. Miers is not Bork-like or Scalia-like, she’s far from that. Rising to the top of a law firm is a nice feat, but ladder climbing is not one of the top qualifications for securing a seat on the Supreme Court.

Perhaps, as Ann Coulter suggested today on Sean Hannity’s radio show, President Bush’s pick was intended to infuriate certain conservatives who did not want Gonzales to be the nominee. If Bush’s aim was to infuriate, he suceeded. It’s not that I might not end up liking Miers, but her nomination is presumptively unsupportable as it currently sits.

Nothing I’ve heard or read today has convinced me that the Miers nomination is a good thing. VP Cheney went on Rush Limbaugh’s radio program and confidently stated:

I think [Bush] found a good one in Harriet Miers. I think she’ll do a great job.

I think is not the same as I know. Because Republicans have been burned by more than half of their recent Supreme Court appointments, President Bush and Vice President Cheney deserve to know that their nominee will uphold the Constitution as written and possess the intellectual acuity and judicial temperment to resist legislating from the bench.

National Review’s editors had this to say about the Miers pick:

Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field. It seems highly unlikely that she will be the kind of justice who, in combination with Roberts, Scalia, and Thomas, will attract additional votes by the sheer force of her arguments. This nomination was a missed opportunity.

Indeed, Miers is a missed opportunity for Bush. Some think she’s conservative enough, relying on thoughts of respected conservative commentators. Trust, however, is not the same as knowledge.

Optimistically, Miers will turn out to be a fantastic Supreme Court Justice. Perhaps Miers’s forthcoming testimony will demonstrate her dedication to the constitutional text and her disapproval of judicial activism found in Lawrence and Roe. Maybe we just don’t know enough about her yet.

But that’s not the point. The point is that Bush nominated a friend, a trusted acquaintance, rather than a judge who is verifiably conservative or an attorney who advocated on behalf of conservative causes. That’s a shame.

This morning, President Bush nominated White House General Counsel Harriet Miers to fill O’Connor’s seat.

I am utterly disgusted by the nomination. I can’t believe that W. would deliberately refrain from selecting a verifiable, principled conservative for the position. President Bush nominated someone with no judicial experience and with absolutely no assurance (other than Bush trusts her) that Miers will not thrust gay marriage and support other socially destructive policies that will be trumpeted in the halls of the Supreme Court. I am very disappointed. Mark Levin’s comments sum up my feelings quite well:

Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend. Otherwise, there’s nothing to distinguish her from thousands of other lawyers. And holding a high post in the Bar, which the White House seems to be touting, is like holding a high position in any professional organization. But it reveals nothing about the nominee’s judicial philosophy. There are many top officials in the Bar who I wouldn’t trust to handle a fender-bender. Also, early in his term, the president singled out the Bar for its partisan agenda and excluded it from a formal role in judicial selection. The president said he would pick a candidate like Antonin Scalia or Clarence Thomas, and he did not. We all know of outstanding individuals who fit that bill, and they were once again passed over. Even David Souter had a more compelling resume that Miers.

The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their “extra-constitutionalism.” The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt’s New Deal. But no one will accuse him of FDR’s boldness when it comes to the Supreme Court.

If people are disappointed, they have every reason to be.

Conservatives should feel a little betrayal ebbing from the President’s pick. As Mark Levin shrewdly noted, Miers is simply not a judicial nominee in the mold of Scalia and Thomas. The base is upset, and I hope Bush feels the level of frustration of his loyal supporters regarding his nomination of Miers.

W. had his chance to shove a verifiable, conservative nominee in the liberals’ face. Instead, he choose to walk the path of diversity and preen to cajoling Senators who successfully prevented the American public from having another Supreme Court justice who is a verifiable, social conservative.

Today by a vote of 78-22, the Senate confirmed John Roberts as Chief Justice of the United States Supreme Court. (Senator John Kerry (D-MA) was tardy and missed his first opportunity to voice his “NO” vote during the roll call. Apparently, Kerry received some last minute grooming before the vote). A few hours later, John Roberts was sworn in as Chief.

Fifty percent of Democratic Senators voted for Roberts. That’s pretty amazing. Even “Jumping Jim” Jeffords joined the Roberts bandwagon. “Dingy” Harry Reid led the other fractured fifty percent down another losing path.

Looking beyond the today’s confirmation, Chief Justice Roberts will likely guide the Court for the next three decades. How will he fare? Will he metamorphis into another Justice Stevens (who coincidentially adminstered him his judicial oath), or, will he hold true to the text of the Constitution which he defended in his confirmation hearings?

If Roberts jurisprudence is indeed akin to Justices Scalia and Thomas, President Bush’s selection of Roberts will be remembered as one of the greatest political manuevers in history. Ralph Neas, Michael Moore, MoveOn.org, NARAL, and the ACLU could not persuade a measley 25 Democratic Senators to vote against Roberts. The radical liberals used all their guns against Roberts and now wallow in a defeatist mire. Their methods of attack and bravado simply did not work. But, was it the method that failed to resonate or was Roberts a bulletproof nominee?

John Roberts was indeed bulletproof. He was a Superman nominee. Brandishing a squeaky-clean record, liberals and Democratic Senators like Chuck Schumer could not find any kryptonite with which to weaken Roberts confirmatory appeal.

John Roberts’s tenure as Chief will be very, very important for our country’s future. Here’s to hoping it’s a constitutional, socially conservative one.

There is a big buzz in the blogosphere over the possibility that President Bush would nominate Attorney General Alberto Gonzales to the United States Supreme Court as Justice O’Connor’s replacement. Erick at Confirm Them informs that Karl Rove is pressuring W. to nominate Gonzales. Rove’s political exertion (a deft and calculated one) is likely the product of his affinity for Republican base expansion rather that one based on core, fundamental Republican principles. How much weight will Bush grant Rove? That’s hard to say or know with any degree of certainity. Electorally speaking, Rove’s recommendation would probably carry a great deal of weight. Bush’s selection of Judge Roberts (white male) was hardly an electoral move. Moreover, Bush has repeatedly promised that he would nominate judges in the mold of Scalia and Thomas. Gonzales does not oppose affirmative action like Scalia and Thomas, which is why Rove would have to paint Gonzales as conservative in order for Bush to nominate him.

Gonzales apparent campaigning for the Supreme Court nomination underscores why he is simply unfit for the Supreme Court. You shouldn’t have to campaign for your conservatism if you truly are a conservative. Strikingly, Gonzales’s reign in the AG’s office has been a silent one compared to the conservative John Ashcroft’s administration. Ashcroft was constantly berated by the MSM and liberals for his stance on the Patriot Act and conservative values he instilled while in office. Ashcroft is pro-life and opposes same-sex marriage, two views that Gonzales might or might not share.

W. needs to select the most qualified socially conservative candidate and not a good buddy. He needs to find someone opposed to same-sex marriage by judicial fiat, a man or woman who strictly interprets the Constitution and who is sufficiently grounded in their ideals that hand-wringing by the press or the law school elites will not nudge him or her into a squalid moral relativism that displaces the values of the citizenry and exalts the radical impulses of a meager few.

Gonzales, in my view, is not worthy of Bush’s nomination. Even if (and it’s a big if) Gonzales would be a justice like Scalia or Thomas, Bush must appoint someone with verifiable and weatherworn conservative credentials–credentials The Honorable Alberto Gonzales does not possess.

Yesterday, Senator Arlen Specter announced he was supporting President Bush’s nomination of Judge Roberts as Chief Justice. The question of why Specter supports the Roberts nomination is crucial in determining whom the White House will select to replace Justice O’Connor.

Specter, when he gratitiously assumed the chairmanship of the Senate Judiciary Committee, informed Bush that he would block (not support) judicial nominees that were in his view too conservative. Moreover, he warned that judges who wanted to overturn Roe would receive a not-so-welcome reception.

Roe plays the central role in Specter’s judicial nominee analysis. In his comments on the Senate floor, Specter stated the following:

When it came to the critical question of Roe v. Wade, I did not ask him whether he would affirm or reject the Roe doctrine. I did not do so because I believe it is inappropriate to ask a nominee how he would decide a specific case.

As chairman, it was my view that any member could ask the nominee any question that the member chose to, and the nominee would be free to respond as he chose. Beyond refraining from specifically asking whether he would affirm or overrule Roe v. Wade, others and I questioned him extensively about the import of stare decisis, the Latin term meaning “let the decision stand.'’ He emphasized that stare decisis was a very important principle in the law and that even where a justice might consider Roe wrongly decided, it takes more to overturn a precedent than simply to conclude it was wrongly decided initially. Because–and this is Arlen Specter speaking, not Judge Roberts–where the case has stood for some 32 years and has been reaffirmed most emphatically in Casey v. Planned Parenthood, it has become, as some have called it, a super precedent.

I then made the point that the Supreme Court had taken up the issue so that Roe could have been reversed, overruled on some 38 occasions. Should it come before the Court again, perhaps the balance of the 38 cases would make super-duper precedent to uphold Roe.

If Judge Roberts’s view on abortion/Roe is the “critical question” and Roe has reached “super-duper” Specter-status, (Shouldn’t the words “super-duper” be reserved exclusively for cartoon characters like Scooby Doo?) then Specter has reaffirmed his earlier stance–that Roe is sacrosanct, and that any Supreme Court nominee who doesn’t believe in Roe as a super-duper precedent will get the political finger from Specter.

President Bush took a gamble in supporting Specter’s chairmanship. Now, how will he roll the dice with O’Connor’s replacement? Most conservatives are happy with the Roberts pick, however, there definitely are some legitmate questions on how he will rule on moral issues like same-sex marriage and partial-birth abortion. Also, most conservatives (myself included) would prefer O’Connor’s replacement to be someone in the mold of Scalia and Thomas that is verifiable and proven, like Judge Michael Luttig.

Will Bush risk upseting Specter and nominate a true, principled conservative without the cloak of Roberts? The Supreme Court is in dire need of a transformation from its activist and internationalist charades. Specter should not be in a position to block such a nomination and Bush will have to dig deep to overcome Specter’s carping if he nominates someone like Luttig. However, the conservative base would be overjoyous to support such a nominee and would be willing to take off the gloves and fight for the nomination’s success. Conservatives won the election for Bush. Now, Mr. President, it’s time for payback. Please nominate a conservative to replace Justice O’Connor. Specter and his amorous relationship with Roe and her precedents should not stop a true, verifiable conservative, from sitting on the Court next to Scalia, Thomas, and yes Chief Justice Roberts.