I agree.
Before the hemlock is consumed let the hearings play out.
Posted on 10/13/2005 6:06:49 AM PDT by OESY
Some afternoon observations on Miers and "Borking."
October 12, 2005 12:45 PM PST
The verb "to Bork" has an origin in the 1987 treatment of Robert Bork by his opponents on the left. It was a dishonorable episode in American political history. From Wikipedia:
According to the New York Times, the verb to bork might be defined as "to destroy a judicial nominee through a concerted attack on his character, background and philosophy." [1]
The most famous (or infamous) use of the verb to bork occurred in July 1991 at a conference of the National Organization for Women in New York City. Noted feminist Florence Kennedy addressed the conference on the importance of defeating the nomination of Clarence Thomas to the U.S. Supreme Court. She said, "We're going to bork him." [2] Thomas was subsequently confirmed after one of the nastiest confirmation fights in Supreme Court history.
Some conservatives involved on the attack on Miers -especially the anonymous Judiciary Committee staffers quoted in this morning's papers and the anonymous leakers to reporters like John Fund and pundits like David Frum-- are embracing the tools of Borkery, first forged on the left. Once used, it will be impossible for conservatives generally to denounce their subsequent use by the left in attacking preferred nominees.
Example: On my program, liberal law professor Erwin Chemerinsky has repeatedly asserted that Fourth Circuit Judge Michael Luttig, a jurist at the top of my and many lists for a future opening on SCOTUS, has "temperment issues." This is a laughable assertion, and I always denounce Erwin's attempt to make this charge stick because there is no one with whom Judge Luttig works who has ever said such a thing on the record. When next I object to such a comment, I fully expect Erwin to reply that anonymous sources were good enough for conservatives in the Miers battle.
I also have to note that the demand for a paper trail proving Miers' acceptability on matters of judicial philosophy --a demand most vocally and repeatedly made by Mark Levin, as recently as yesterday on this show-- opens the door to demands by Democrats for contrary assurances. If the Democrats retreat to filibuster over future nominees, and the debate over the constitutional option unfolds before a national audience, be prepared to hear thrown back at opponents of the filibuster the Democrats charge that the GOP wants to manipulate the confirmation process so it gets the answers it must have but that Democrats may not have the answers they demand.
Finally, my friend John Podhoretz takes my warning about the debate over Miers having an effect on Evangelicals of "pushing some of a crucial demographic towards the sidelines," and converts it into what he says is my "presumption, therefore, that the defeat or withdrawal of her nomination will cause millions upon millions of Evangelicals to stay home more than a year from now in a snit over the loss of their 'identity politics' candidate."
Look. Some elections are very close. Some, like the 2000 Senate contests in Washington State and Missouri, or the 2002 contest in South Dakota are decided by handfuls of votes. It doesn't have to be an epic departure of an entire constituency to cripple crucial races. Playing with fire over nominees --and especially attacking those who at least deserve the benefit of the doubt and at best deserve a strong and determined defense-- is terrible politics.
The response will be that "the base" cares about judges --of course they do. They cared enough about Bush's nominees to get very active in 2002 and 2004 on that issue. Now the critics are saying Bush has lost his way and is losing the issue. These critics aren't just refusing to dance with the one that brought them, they are denouncing the idea of even having traveled to the ball in his car.
Be sure to read the transcripts of my interviews with Erwin Chemerinsky and Katherine Jean Loez from today's show when they are posted at Radioblogger.com.
"A Lean and Hungry Look..."
October 12, 2005 06:06 AM PST
From this morning's New York Times:
All the Republican staff members insisted on anonymity for fear of retaliation from their supervisors and from the Senate leaders.
Very nice. Committee staffers are often very bright, and superb politicos, unless they are simply the grandchildren of rich donors. There are brilliant staffers, and there are copy machine staffers. Some went to law school and excelled there, some have clerked on high or even the highest courts. Others have never worked a day in the private sector on behalf of a client. The incredible disloyalty they are showing in this instance to their bosses, the Committee, the nominee and, yes, the president, is not surprising, but disheartening. In fact, if they acted without the authorization of their Member, they will have violated the Canons of Ethics of the Bar. A small matter for some, no doubt, but call me old school.
Here's the funny guy in the Washington Times who may never have written a brief in his life:
Staffers also said many of them chuckled over a biographical "pocket card" of talking points about Miss Miers that the White House distributed for use by any senator wishing to praise the nominee. "They had to double-space it," said one aide, laughing.
"White House Counsel," "Assistant to the President," "Managing Partner," and "President, Texas ABA" don't take up much space. I can say with complete certainty that there isn't one staffer --not one-- on the Judiciary Committee with a resume as accomplished as that. I can also say with certainty that if a month ago, Harriet Miers had offered any lawyer on the Committee's staff the position of Associate Counsel to the President --the most prestigious law practice in the world, the Washington Post once called it-- nine out of ten would have accepted. Note to the file: Many of the GOP staffers of the Judiciary Committee cannot be trusted.
Those who have been arguing that there is no "elitism" in the opposition to Miers have a new story to refute. The conservative opposition to Miers is rooted in the conceit among some Beltway operators --echoed by some conservative pundits-- that some conservatives know how to discern a nominee's philosophy and future trajectory, and are better positioned than the president, the vice president, senior aides, former White House Counsel lawyers, law professors Gralia and Starr, Texas Supreme Court Justice Nathan Hecht, James Dobson, Jay Sekulow, Chuck Colson etc.
If these tactics were used by the left against a nominee beloved by the D.C. druids, there would be screams of outrage from within the druids. Now that they are employed by the right against a nominee of the president's, how effective will the complaints be when the long knives of the left come out for future nominees?
There is zero honor and very little utility in these tactics.
A conservative lobbyist for Republican judicial nominees said that fighting for the Miers nomination has been "utterly joyless."
"I don't even want to be in politics anymore," said the lobbyist. "Why don't I just give up and move to suburban Maryland and work in communications for some big corporation?"
Perhaps because that would require the ability to accomplish difficult things.
Mark Levin and I had a fun time going back and forth last night on this nomination, and Mark's rhetorical hole card is to ask for proof of Miers judicial philosophy. Mark shares my disdain for anonymous sources, which doesn't surprise me in the least because he's an honorable man.
His critique is that he doesn't have certainty about what Miers believes when it comes to the Constitution. He doesn't even want to engage on the issue of her lawyerly talent --he'll concede that. Lawyerly talent is beside the point to him. So much for the shot --baseless-- at her resume by a minor druid. It isn't about the resume.
My response is that while there is no written record of Miers views, there is an abundance of evidence that she is an originalist, including the testimony of those who know her, her choice of places to work, the positions coming out of the White House during her long tenure there, and that she will have a chance to answer appropriate questions during her hearings. Her pro-life and pro-Second Amendment views cannot be challenged. Not enough for the druids. They want a Heritage/Cato/AEI/Claremont speech. Not there? Not good enough for them.
There is no little irony that Senate staffers who failed to persuade their Members' caucus to break an unconstitutional filibuster when the time is ripe presume to lecture us on a nominee's judicial philosophy and resume strength.
Low level, exiled officers in the French Army advising the Brits on how to conduct the war in 1941 would have had less hubris.
The three justices who did not disappoint the druids all came from inside the GOP Administrations of the era --Thomas, Scalia, Rehnquist.
The three justices who disappointed deeply --Souter, Kennedy, and O'Connor-- came from far away.
Harriet Miers comes from the front lines of a five year war with the left, and nearly as long a war with our real enemies.
And anonymous staffers mock her resume? That's just unbelievable. Senators Kyl and Senator Brownback, Senators Sessions and Hatch, Senators Cornyn and Coburn and Grassly --are you really going to allow your people to be less honorable than the left?
Hugh Hewitt is one of the few pundits that understands that the vocal right minority's treatment of the Miers nomination is no different than the tactics used by the left to discredit jurists whom they have a philosophical difference with. It is borking just the same.
Just wanted to make sure that you saw this.
I agree.
Before the hemlock is consumed let the hearings play out.
Hewitt is a cool-aid drinker.
Unfortunately, once she reaches the hearings, she's pretty much guranteed a seat on the SCOTUS. I'd rather stop her short. Conservatives are in short supply in the Senate - there are not enough to stop her if she refuses to demonstrate competence and originalist judicial philosophy. Most 'Pubbies will shut up and drink the cool-aid.
Aye! ;)
In the words of Socrates:
"I drank WHAT?!"
you are talking about.
Perhaps it becomes "cool-aid" after the cyanide is mixed in?
I gave out such a spontaneous howl upon reading that, that my dogs came in to rescue me! ;)
Indeed it is borking and it is SHAMEFUL! (That's twice now that we've agreed on something! ;>))
I need to see a simple majority hurdle, and I need to have a degree of transparency in the nominee to permit me to reliably assess their understanding of, and commitment to apply judicial restraint.
The first point is a matter of adhereance to the balance of powers illuminated by the words of the Constitution. The second point is also a matter of balance of powers, as I don't want judges setting policy that should be set by the people through their elected legislature. The people deserve an honest & transparent process, not some sophist-laden charade.
So, inasmuch as Hewitt objects to false or unsubstantiated criticism of the nominee, he is right. But he should be considering whether or not he is happy with THIS process, as it is now underway.
Obviously, I am not happy with it, and my Senators know my feelings on the subject.
My work here is done...
He does keg stands with the kool-aid. If the Republican party came out on a platform of kicking puppies and taking lollipops from little kids Hugh would write 10,000 words on the virtue of the new platform.
Where do you plan to find the conservative senators to vote for someone you'd like? Someone you like (I'd probably like such a nominee too) would be someone the Democrats hate (and someone Specter would hate and someone the Gang of 14 can't be counted on to support). The Dems consider this a "swing" seat in perpetuity; for Rehnquist's seat, they didn't get anyone worse for them than Rehnquist.
In this nomination, the stakes are higher for them, too. I think they'd filibuster. Thanks to McCain, the Republicans didn't break it when they had the chance.
Places like Iowa and Indiana have Republican legislatures with very slim majorities. I don't know about Iowa, but I know that a democrat legislature would keep Mitch Daniels from getting anything accomplished, and would probably end up with his defeat in 2008. Beltway people may not care about state politics, but those of us out here in the Heartland sure do.
Paper trail doesn't explain it. They had paper on O'Connor, Kennedy, and Souter. It proved nothing.
Her current position doesn't explain it. As the man says in the article: Offer any lawyer in America the job of Counsel to the President of the USA, and they will consider it a wonderful opportunity and an important position.
Her resume doesn't explain it. There aren't many who've headed a huge law firm, who have made law review, who've been named to the top 100 lawyers, who've been named to the top 50 female lawyers, who've been head of the state bar of one of our largest states, and who've been special counsel to the President of the USA.
A mathematician could tell me the probability that any lawyer (or anyone) could achieve such a resume. (We'd multiply each of the items, wouldn't we? How many lawyers are there in America? How many law firms over 400 lawyers are there in America? How many managing partners do they have per decade? What ratio of lawyers achieve that level...1/10,000 or 1/100,000 or what?) Bottom line: I'm betting that's a one in a million resume.
So, what other reason explains the objection of the conservative glitterati to Ms Miers?
Religion, Race, Sex, Social Status, hair color, height, age, country club....what????
I'll probably never know.
How bad is it to be borked by Bork?
Ping to Kool Aid article by Hugh Hewitt.
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