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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, October 31, 2005 ::

    Certiorari Sam!!

    :: David M. Wagner 1:46 PM [+] ::
    A lot of Alito "songs" are making the rounds. Here's one of mine:

    (tune: "Tradition")

    And whom does Dubya pick
    To mend his broken fence
    And read the Constitution
    With too-rare common sense?

    Alito-o-o-o -- Alito!

    :: David M. Wagner 11:04 AM [+] ::
    :: Saturday, October 29, 2005 ::
    According to the Chicago Tribune's Jan Greenburg, it's down to Alito and Luttig.

    :: David M. Wagner 11:17 PM [+] ::
    :: Friday, October 28, 2005 ::
    Another Regent Law alumus blog: El Día, by Peter Gentala.

    I'm also adding the formidable Manhattan Institute's blawg, Point of Law, to the roll.

    :: David M. Wagner 5:32 PM [+] ::
    Brownback’s star rises as nominee falls

    :: David M. Wagner 2:31 PM [+] ::
    :: Thursday, October 27, 2005 ::
    According to Bloomberg.com, the President
    is trying to balance competing calls for a woman or racial minority, a staunch conservative and someone who won't provoke a showdown with Democrats.
    Earth to MSM -- Miers was forced down by a showdown with Republicans. Avoiding that is the first requirement of the new nominee. With 55 Senators plus the Vice President, we can Ted-Kennedy the Democrats (i.e., "cross that bridge when we come to it").

    :: David M. Wagner 12:17 PM [+] ::
    Miers withdraws.

    PFAW laments.

    :: David M. Wagner 10:12 AM [+] ::
    :: Wednesday, October 26, 2005 ::
    Well, well.

    :: David M. Wagner 3:15 PM [+] ::
    :: Thursday, October 20, 2005 ::
    Satire from RedState.org: Bush withdraws Miers, nominates the late Mr. Justice Sutherland.

    I oppose this renominee, because he is unsound on separation of powers!

    :: David M. Wagner 5:49 PM [+] ::
    :: Wednesday, October 19, 2005 ::
    "Who is that guy on the Supreme Court and what has he done with the real David Souter?"

    :: David M. Wagner 11:45 AM [+] ::
    :: Tuesday, October 18, 2005 ::
    The backlash against "Whig" narratives comes to 20th century con law: here (at Volokh Conspiracy) David Bernstein reviews Ken Kersch's important book Constructing Civil Liberties.

    :: David M. Wagner 4:09 PM [+] ::
    Now this is more like it, as far as it goes.

    :: David M. Wagner 4:04 PM [+] ::
    :: Friday, October 14, 2005 ::
    Among those cautiously optimistic about Harriet Miers, we may now count New York's Gay City News.

    Also, the daily paper of Austin, TX -- I don't know about the paper, but the city of Austin is a glowing blue spot in a sea of Texas red -- which on the day before she was announced, editorialized:
    Plenty of capable women are on the president’s short list, with Harriet Miers, a moderate Texas lawyer and former State Bar Association president, being among the most notable.
    Hat-tip: Confirm Them, of course.

    :: David M. Wagner 11:38 AM [+] ::
    :: Wednesday, October 12, 2005 ::
    Many thanks to Professor Bainbridge for this mention!

    :: David M. Wagner 2:22 PM [+] ::
    So, what's Dr. Dobson got to say for himself about his sudden notoriety in re the Miers nomination?

    1. The "I know things I probably shouldn't" remark, he says, was made before Miers was announced, and referred to nothing more than the fact that her status as a front-runner had been disclosed to him. I'm now waiting for Paul Weyrich, who complained about the remark publicly, to confirm or dispute that Dobson made the remark only before, and never after, the Miers announcement.

    2. More remarkably, Dobson says the White House told him that the other nominees took themselves out of the running!
    "Well, what Karl told me is that some of those individuals took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter, that they didn't want to subject themselves or the members of their families to it."

    Dobson said conservatives who are bemoaning the president's failure to "appoint so-and-so" to the U.S. Supreme Court may not realize that "those individuals didn't want to be appointed." He said Rove didn't name any names.
    OK, I will now read off a few names of nominees who would have made the hearts of the President's base go pitty-pat: Jones; Rogers; Batchelder; Luttig; Garza; Alito; Estrada; Pryor; Easterbrook; Owen. I could go on, but ten is enough to make the point: are we actually being asked to believe that all ten of these asked not to be considered?

    I had heard that Owen did so; perhaps the Sunday-school teacher did not feel up to going mano a mano with Schumer, Biden, and especially Ted Kennedy (eck, pooie). Can't blame her; and besides, some conservatives had reservations about her anyway. But that leaves nine others (plus more I did not name). Edith Jones is tough as nails and smarter than the entire Judiciary Committee put together, and Emilio Garza is a Marine. And they chickened out of a confirmation process? That's what we're being asked to believe?

    EDITED TO ADD: ABC reports:
    A senior administration official said it was "just a couple" of candidates who had withdrawn from consideration....

    McClellan would give no names of candidates who withdrew but federal appeals court judge Priscilla Owen of Texas was reportedly one of them.
    So, Owen (which we already knew) and one other. So, the other eight (or more)?

    :: David M. Wagner 11:43 AM [+] ::
    :: Tuesday, October 11, 2005 ::
    An Alert Reader in Washington points out that the National Right to Life Committee's statement on Miers was less than an endorsement.

    :: David M. Wagner 6:08 PM [+] ::
    :: Monday, October 10, 2005 ::
    Danielle Crittenden "reports" on HM's prep sessions for the hearings.

    :: David M. Wagner 7:21 PM [+] ::
    I spoke yesterday with a conservative friend who shares a group house with a Leahy staffer. My friend reports that the mood in Leahy's office is "relief." I take it that means mine should not be.

    :: David M. Wagner 5:04 PM [+] ::
    :: Sunday, October 09, 2005 ::
    Our Hero seems to lend some support to Miers:
    "There is now nobody with that [non judicial] background after the death of the previous chief.

    "And the reason that's happened, I think, is that the nomination and confirmation process has become so controversial, so politicized that I think a president does not want to give the opposition an easy excuse [to say] 'Well, this person has no judicial experience.'"

    "I don't think that's a good thing. I think the Byron Whites, the Lewis Powells and the Bill Rehnquists have contributed to the court even though they didn't sit on a lower federal court."

    :: David M. Wagner 10:26 PM [+] ::
    :: Thursday, October 06, 2005 ::
    In response to my post yesterday on how Bush's efforts to make Miers acceptable to the Right may end up making her unacceptable to the Left, and how it would have been more efficient to choose someone who was already unacceptable to the Left, "Publius" writes in to say:
    That's assuming that POTUS and co. anticipated this kind of a reaction; it seems pretty obvious that they did not, even apart from some commenters at ConfirmThem who claim to be in the know confirming that they were taken by surprise. I'm guessing they thought the reaction would be similar to the reaction to Roberts: discomfort among some and opposition by a very few like Ann Coulter but overall support.
    True, and it's mysterious. The nomination seems to reflect a profound misreading by POTUS of his own base, and he has not previously been prone to such misreadings.

    One explanation, which I hope isn't true, is that he's so sure both of himself and of his standing among conservatives that he really thinks "Trust me" is going to settle it. Another explanation, more reasonable, is that he's saying in effect: "Look, I'm the POTUS who gave you Pryor, Brown, and Owen, and who tried to give you Estrada and Boyle, and who got you Pickering for a year anyway, and who got in the Dems' face by renominating all the judges the Dems had filibustered. I've made deposits in the cred bank on the judge issue. Now I want to write a check."

    That's the best case I can see for "Chillin'".
    However, The Washington Post reports today:
    A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not.
    Particularly interesting:
    "The message of the meetings was the president consulted with 80 United States senators but didn't consult with the people who elected him," said Manuel A. Miranda, a former nominations counsel for Senate Majority Leader Bill Frist (R-Tenn.), who attended both private meetings.
    -- which tends to stoke suspicions that confirmability, free of opposition -- opposition from Democrats, that is -- was the only criterion seriously applied after some minimal threshold of GOP inclination was cleared.

    "The best nominee I could find," the President keeps saying. If he would say, even in private and through spokesmen, something along the lines of "Look, guys, my political capital is in the tank, this is not the time to have the big fight, for the following reasons....," then fine, we could have that debate. (Sen. Thune would take the other side.) But to try to insist, in private meetings as well as before the mikes, that he "could find" no potential nominee who was both more objectively qualified and more reliably conservative than Harriet Miers? So Jones, Garza, Luttig, Brown, Batchelder, and Estrada were hiding in the credenza?

    EDITED TO ADD: Dobson is now hedging his previous support.

    :: David M. Wagner 10:21 AM [+] ::
    :: Wednesday, October 05, 2005 ::
    Concerns about Miers persist

    Wednesday, October 5, 2005; 4:13 PM

    WASHINGTON (Reuters) - Concerns by conservative U.S. Senate Republicans about Supreme Court nominee Harriet Miers persisted on Wednesday despite President George W. Bush's assurances that his White House counsel is the best person for the job.

    The President is being forced to argue to conservatives for Miss Miers's conservative reliability, a project which, to the extent it succeeds, will provoke opposition by Democrats.

    Otoh, he could have nominated someone who came with conservative pre-approval. That, too, would have provoked opposition by Democrats -- but at least the President would not have been forced to expend time and political capital just to achieve that opposition. I mean, never mind qualifications -- wouldn't this have been the better course just from a time-management point of view?

    :: David M. Wagner 4:43 PM [+] ::
    :: Tuesday, October 04, 2005 ::
    What do you call those who are willing to "wait and see" about Harriet Miers? The Coalition of the Chillin'. (Hat-tip: ConfirmThem, which is considering changing its name....)

    :: David M. Wagner 10:05 AM [+] ::
    Subject-line of mass e-mail from Ken Mehlman, RNC Chairman: "Harriet Miers needs your help." You don't say.

    :: David M. Wagner 12:46 AM [+] ::
    :: Monday, October 03, 2005 ::
    Well, so it really is Harriet Miers. My first take, before consulting the blogosphere:

    Conservatives were not as up-in-arms over Miers in advance as they were over Gonzalez, but, if I read the blogs correctly, that's because we thought the Miers rumor was a joke; or, if serious, then merely a red herring to distract the bookmakers.

    Now, she may actually be the best nominee since Thomas. Who knows? That Bush trusts her is a plus. But to turn to such a stealth nominee, when so much quality was available, and there are 55 Republicans in the Senate? If there was ever a time to appoint Jones or Garza or Luttig, it was now. Are we being asked to believe that the President had to go the way of stealth and cronyism in order to get a nominee through this Senate?

    To me, it's irrelevant that she has never been a judge. Neither had Frankfurter, Black, Jackson, or Rehnquist, among others. Nor am I disturbed that her resume is silver or bronze rather than gold. There are too darn many Harvard Law grads on the Court already (yes, I know Our Hero is one, and so is the new Chief), and the Yale-Harvard-Stanford stranglehold on the Court is unnecessary and perhaps harmful.

    No, my concern is not that there may now be an SMU grad on the Court. That's to the good. My concern is that open advocacy of conservative legal views is now a definite disqualifier for the Supreme Court, in a conservative administration that campaigned in part on putting more Scalias and Thomases on the Court, and with a 55-member GOP Senate conference. Whether you're in practice, in academia, or on a lower court, the crime of being conservative in a public place now means no one will appoint you to the Supreme Court. It's not even clear that Federalist Society membership will be tolerated when it comes to picking high Court nominees.

    Watch for the next generation of conservative legal thinkers to go silent on the big questions, leaving no indication of who they are, making no disciples, and forcing the next conservative administration -- if there ever is another one, which must now be considered in doubt -- to trust to sheer luck in finding them. Assuming, that is, that it even wants to find them.

    Let's see if anyone is more optimistic.

    Krempasky at Confirm Them says:
    We’ve got a lot to learn about SCOTUS nominee Harriet Miers. To hear the White House tell us, “With her distinguished career and extensive community involvement, Ms. Miers would bring a wealth of personal experience and diversity to the Supreme Court.”

    Diversity. Sure she does. In fact, she gives money to Republicans *and* Democrats.

    Mr. President, you’ve got some explaining to do. And please remember - we’ve been defending you these five years because of this moment.
    Otoh, Tim Carney tells us:
    In 1993, after the ABA had voted to adopt a pro-choice stance, the State Bar of Texas, under Miers’ leadership, fought to have the issue put to a vote of the full ABA membership. She said:

    “If we were going to take a position on this divisive issue, the members should have been able to vote.”

    In favor of democracy on the issue of abortion? Let’s hope she carries that through.
    And let's hope her objection to the ABA resolution was more than just procedural. In fairness, few lawyers got active in the fight against the ABA's pro-legal-abortion resolution unless they were themselves pro-life. It was a question of energy and motivation. So we can hope -- but we shouldn't have to.

    :: David M. Wagner 12:24 PM [+] ::

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