McCain’s Blunder

National Review Online ^ | 10/06/05 | Mark R. Levin

[wcdukenfield]

October 06, 2005, 1:49 p.m.

A liberal minority in the Senate will have the upper hand.

I am hearing two primary arguments for Harriet Miers by those who are close to the president:

1. The president knows her, believes she is the best candidate, and we should trust him because his past judicial picks have been excellent; and

2. There are not enough Republican votes in the Senate to win an ideological fight over a nominee like Michael Luttig, Edith Jones, or Janice Rogers Brown.

I and others have already addressed the first point at some length over the last several days. As I wrote Monday morning in Benchmemos:

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. ...

Unfortunately, no new information has been presented to change my view.

But the second argument about the impotence of the Senate Republicans is worth some discussion, too. The fact is that this Gang of 14 moderates, led by Senator John McCain, did make it much more difficult for the president to win an ideological battle over a Supreme Court nominee. The Democrats did, in fact, send warnings that they were prepared to filibuster the second nominee. And under such circumstances, the president would have needed 60 votes to confirm his candidate, not 51.

Lest we forget, Majority Leader Bill Frist and the overwhelming majority of his Republican colleagues were poised to defeat the unprecedented and frequently used (or threatened) filibuster tactics that had been unleashed against President Bush by the Democrats to weaken his appointment power. The big media editorialized against it. George Will wrote at length (albeit unpersuasively) against it (see here and my response to him here). And Bill Kristol's favorite presidential candidate in 2000, John McCain, the leader of the Gang of 14, was all over the media making clear he would torpedo such an effort. And that's exactly what he did. This in no way excuses the president's blunder in choosing Miers. But the ideological confrontation with the likes of Senator Charles Schumer and the Democrat left that many of us believe is essential, including Will and Kristol, was made much more difficult thanks to the likes of McCain and the unwillingness to change the rule before any Supreme Court vacancy arose. This president has been poorly served by his Republican "allies" in this regard. Bush is the first president who has had to deal with an assault of this kind on his constitutional authority. And unless and until the filibuster rule is changed, a liberal minority in the Senate will have the upper hand.

Today the president would have to persuade seven of the most unreliable Republican senators to trigger the so-called nuclear option in order to clear the way for an up-or-down vote for, say, a Luttig. It is not at all certain or even likely that Lincoln Chafee, Olympia Snowe, and/or Susan Collins — the most liberal of the seven — would have voted for the Senate rule change for the purpose of confirming a solid originalist. And it's likely the Democrat leadership would have succeeded in convincing at least some (if not most) of the seven Democrat moderates to oppose a rule change. I have no doubt that this was part of the White House's political calculation. And it's possible the president didn't want to limp into this fight. That's no excuse. But McCain — who wants to be president and has now endorsed Harriet Miers — and his cadre must not escape scrutiny for their blunder.

— Mark R. Levin is author of the best-selling Men In Black, president of Landmark Legal Foundation, and a radio talk-show host on WABC in New York.

* * *

[DTogo]

McCain will go nowhere in 2008. His campaign is an MSM fabrication that only he thinks is an actual possibility.

[hosepipe]

[ I would have nominated Bork or Coulter. ]

Coulter nominated for the Supreme Court.?. What a concept..

LoL.. NOW that would be a fight worth seeing..
Oh the hyperbole from both sides..
Oh the lovely beautiful sound bites..
Oh the repartee with the Senate democrats. Ann would murderize them..

(Dreamin) *sigh*..
That might me even make me entertain Bush as a conservative even though I know hes isn't..
It would take balls as big as Janet Renos to pull that off..

[Cboldt]

Well, well well, a thoughtful piece that does not blame Frist for laying the predicate which led to this debacle. Frist never had the votes as Levin acknowledges.

Frist has the votes for some Circuit Court nominations. Graham and DeWine are on record, naming names of judges that Reid would filibuster, that they would vote for the nuclear option.

[Pessimist]

" What would it serve to have the type of nominee he had hoped for demeaned and debased by the Democrats followed by a display of Republicans who wouldn't trigger the "nuclear option?"

Party politics aside, what it would have done is brought the entire left / right debate into sharp public focus. There come times when one must stand on principal. If not now, when?

And in political terms, there are a number of dem senators in red states up for re-election next cycle who may have been vulnerable had the pres dedicated sufficient political capital to the issue.

[Diddle E. Squat]

Giuliani never intended to run with McCain, but with a conservative (likely a social conservative.) I am convinced that he will be on the ticket as either the P or VP, with someone like a Pence or Pawlenty or Allen(but he's really fading, though not as fast as Santorum, and IMHO not Presidential material.) And frankly, a Giuliani+conservative ticket is the only one likely to win, given all the dynamics. It would hold all the southern states and win at least NY, and probably NJ, to offset the likely loss of OH and possibly NV or CO (CA diaspora infections.)

[cogitator]

In my opinion, it would have been better for the process, and for the Court, to have nominated a clearly conservative judge and then watch the "Gang of 14" struggle to justify that the "extraordinary circumstances" for a filibuster were invokable due to the nominee.

The burden of proof would have been on them to indicate why the nominee did not deserve to be seated on the Court. Now the burden of proof is on the Administration to indicate why the nominee deserves to be seated on the Court -- other than the basic lines we've been fed so far.

[Hank Rearden]

I can't understand, if Levin believes this of McCain and the gang, what he wanted Bush to do.

If Bush Jr. doesn't have the guts to take on the likes of Schmucky Schumer, Kennedy and Feinswine now, then when, exactly?

Are buttwipes like them going to remain unchallenged and unrefuted until the day they die in their chairs?

Or is Bush Jr. waiting for something important to challenge them?

[Mister Baredog]

Now we have a nominee who is a cipher, who moves the national debate not one centimeter toward a proper understanding of judicial review.

Gee I thought the Roberts hearings were very enlightening in that regard.

That's not what you want, you want the bloody fight, admit it. LOL.

Now we have a nominee who is a cipher

Could we at least hear from her before we judge her, that would seem fair to me?

[nathanbedford]

You are speaking of the state of play after the gang of seven acted as a fifth column and disarmed the nuclear option. It was then that the whole of the conservative base went ballistic. Lindsey Graham stated backpedaling faster than Ginger Rodgers, declaring which filibuster he would determine for his colleagues were legitimate and which were not and therefore which judges he would vote for.

[Howlin]

They concluded she was qualified for the position she got, nothing further.

[Howlin]

No!!

Let's judge her quick, fast, and brutally.

[Cboldt]

You are speaking of the state of play after the gang of seven acted as a fifth column and disarmed the nuclear option.

Yes. The current state of the matter. The nuclear option is again armed, depending on what constitutes "exceptional circumstances."

In this chess game, the GOP should bring out Boyle and Myers (they are presently on the Senate's executoive calendar) for a vote. Now is a great time to confirm them. Then hustle to get Haynes, Kavanaugh and Saad out of committee, and do the same.

Maybe all of them would be voted on, up or down, without the abuse of cloture; or if the DEMs dared to filibuster, the nuclear option would be "easier" in the context of a Circuit Court nomination than a SCOTUS nomination.

The Senate won't do it. Chicken, if you ask me.

[Dat Mon]

The right nominee chosen by Bush plus the bully pulpit actively used by Bush plus a strong leadership role by Frist....

The gang of 14 would have folded like a fancy silk suit.

JMHO...I guess its something we'll never know for sure.

[BlueNgold]

McCain's BlunderSSSSS
It's plural, varied, and would take most of FRs available bandwidth, but if you are going to discuss things, you should try to do so correctly.

[Mister Baredog]

Let's judge her quick, fast, and brutally

Excuse me if I think you've already done that.

[Howlin]

Ah, I was joking.

I haven't judged her at all; I'm saying let's wait and see. And I've said that from the first.

[johnny7]

Sometimes it is better not to put off "civil" war.

Essentially, that's what Bush is doing. It's NECESSARY to fight now... it was BEST to fight the Friday before that spineless gang-of-7 made their deal with the devil.

[gakrak]

Amen and Amen. I have absolutely no use for McCain. There is no way I can vote for him, but if Hilly is the opposition I am going to be in a real pickle. I really don't like McCain but I really, really despise Hilly. Amen.

[AzSteven]

Obviously Clay stopped the Civil War from starting in 1830-40 instead of 1861, but in 1840 the casualty rate would have been much lower and the Constitution preserved. (Railroads.) Sometimes it is better not to put off "civil" war.

Sort of off-topic I know, but I am not sure that a Civil War in 1840 would have worked out any better for the South; in fact I think it would have been a more dramatic defeat. The rail network in the North was much smaller in 1840, but there was a network; the South reall didn't get into the rail and industrialization business until the mid 1840s. So you would have had a weaker but still numerically and industrially stronger North facing a South with comparitvely less population and industry than they had in 1860 compared to the North.

Of course, none of that stopped my local wargaming group from using that very scenario as the background for six miniature wargame tournament sessions back about 10 years ago. Wars are very entertaining in 25mm scale; much less pain and bloodshed all around.

[cogitator]

In my opinion, it would have been better for the process, and for the Court, to have nominated a clearly conservative judge and then watch the "Gang of 14" struggle to justify that the "extraordinary circumstances" for a filibuster were invokable due to the nominee.

The burden of proof would have been on them to indicate why the nominee did not deserve to be seated on the Court. Now the burden of proof is on the Administration to indicate why the nominee deserves to be seated on the Court -- other than the basic lines we've been fed so far.