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.

* * *

[Mister Baredog]

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.

In that case I'm not surprised we're on the same page. A sarcasm tag might be helpful from time to time, LOL. {:>)

[Proud Conservative2]

"Coulter is now qualified? Let's not go too far with this. She's only slightly more qualified than Miers - only on account of her going to a more prestigious school. Let's not go crazy with this!"




Coulter is not only more qualified, but has a paper trail! We know what we get with her!

[nathanbedford]

Yes I want the fight, because I would want to engage on the most important domestic issue in decades. We have been losing a culture war to be-robed tyrants who eventually will make our democracy not worth having if they are not stopped.

I am old enough to remember billboards urging, "impeach Earl Warren." That is a half century ago. Conservatives have been wandering in jurisprudential outer-darkness for that long. Yet,despite more than forty years in the wilderness, I have not prejudged. I have posted that I did not know how to react to the appointment apart from preliminary judgments concerning procedure which are not premature.

Whatever the motivations to appoint Miss Miers, surely she is not anointed our champion to fight our corner as was Brandeis or Frankfurter. As the admiral said so modestly of himself at the debate, "Who am I, why am I here?"

Who is she, why is she here? Can we not do better? Should we have at least tried?

[conservative blonde]

Name calling Miers does nothing to elevate the discussion. Miers is very well qualified to serve on the Court and she is pro-life also. Better than that, she most probably can get confirmed. This is not the case with the other "notables" who you seem to want to be sacrificed al la Robert Bork

[conservative blonde]

Coulter is NOT "slightly" more qualified than Miers. Where is your mind. Coulter could not keep her mouth shut if she was on the SC

[nathanbedford]

I think you are right on every count and I agree with your plan.

[Howlin]

Noted.

[Ol' Sparky]

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.

If true, it is even MORE of a reason to have a confirmation battle over a known originalist. Conservatives need to know which Republican Senators are willing to fight for known originalist judges and which ones aren't. Those that aren't willing to fight for such justices need to be targeted and eliminated.

Should Miers not end up being a female Scalia, it is imperative that Republicans in the gang of 14 be targeted and eliminated along with George Voinovich and any other RINO unwilling to fight for such justices.

[Ol' Sparky]

No, fighting and eliminating RINOs should be the top priority for 2006 and 2008.

[Mister Baredog]

Who is she, why is she here? Can we not do better? Should we have at least tried?

Hey I wanted the fight too, when low and behold up popped the RINOS to sell out the nomination process for the comity of their precious senate.

If you count the RINOS it's obvious to see that there could easily be a "borking party".

That would probably set conservative judges back forever. They would no longer even be considered for the SC. Remember just how easy it is for the MSM to assist the DUmmies in destroying people.

We watched them do this the Pickering nomination over a just decision in a cross burning case.

The good judge did the right thing BUT it was allowed to stand in the general public that he was somehow a racist.

The left wing hate groups will lift any single sentence out of someone record and use it to create the lies that their MSM pals will repeat ad infinitum.

They have this approach pre-prepared on every conservative judge there is, ready to roll out the hit squads.

At least Bush threw them another curveball. He is the President, I'm thinking Miers might be a Trogan Horse that the DUmmies will forever hate. I really think that's W's goal, don't you?

[Mister Baredog]

Thanks, this is an active thread, jump on it, LOL.

I'm glad to see Mark broadened his analysis from yesterday, he is always inciteful.

[el_texicano]

The lame stream media unfortunately is what most people listen to even today. This same media that would give wide voice and fawning over to Bill "pants down" Clintoon, this same media would do EVERYTHING it could to stifle that bully pulpit when Bush tries to use it. Even Fox is pretty lame in that regard.

[mosquitobite]

Damn fine strategy though. It would be a way to get the base back...

[el_texicano]

"I believe Lindsey Graham, John McCain, and John Warner all would vote in favor of a Senate rules change if their Democratic counterparts broke with the Gang and joined a filibuster."

Would you, say, stake your life on that assumption?

[sine_nomine]

I did not call her any names. The term was coined by someone else for the ridiculous mess caused by Bush's arrogance or ignorance.

There is no proof she is pro-life. All the evidence points toward a liberal mole: financial contributions to the Democrats, full civil rights for homosexuals (whatever that might mean). Perhaps you know that no referendum has passed to permit homosexual marriage. If she answered the homosexual agenda questions as expected, she is against the principles of most Americans.

And no, I do not trust Bush.

[sine_nomine]

Ann, besides being witty, conservative and good-looking, clerked for a Supreme Court justice. That is a fabulous legal honor. Did Bill or Hillary clerk for anyone? Hmm?

We know Ann's philosophy and love it. Good point.

[sine_nomine]

Do some research on Ann's academic career, will you? I roomed next to a Yale Law grad. She was deliriously happy she got a clerkship with a federal judge. Ann got a clerkship with the Supreme Court. That equals a Grand Slam in the winning game of World Series, in the world of legal scholarship.

She has distinguished herself dozens of times in print and on TV.

Let Ann replace Ruth Bader G. And by all means, Let Ann be Ann.

[Ogie Oglethorpe]

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

That's absolutely not true.

Well, let me rephrase. I can't speak for the rest of the jellyfish in that group, but at least Graham was on record as stating that the group agreed that ideology was not sufficient for ANY judicial filibuster of the Supreme Court, and that the GOP seven would vote to go nuclear should a filibuster happen to a SC nominee purely on ideological grounds. At least one of the 'Rat gang (Ben Nelson of NE, I believe) was in agreement with Graham on this point.

Now, I don't believe him (or the rest of the traitorous 14) for a second ... which is precisely why NOW was the time to put them to the test.

Let Lindsay, DeWine and the rest of their ilk explain to the conservatives in their states why they deep-sixed a GOP SC nominee by refusing to go nuclear. McCain too - even though he is in not threateneed in AZ, he still harbors delusions that he will be Prez in '08.

[La Enchiladita]

As for McCain ... he is nothing more than an agent for the left

He is an agent for his own ego, for the bitterness that drives him to be vindictive, the country be damned. What he did to win the allegiance of the other RINOs, I do not know, but IMO the President should have challenged him long ago and certainly with a better nomination for SCOTUS.

[nathanbedford]

On the limited evidence available, I do positively believe Bush appointed her because she has been reborn. I mean that quite respectfully. I mean that he is counting on her being a new person. Most of the time it means she will vote conservative. But I honestly do not think Bush appointed her to vote conservative. I think he appointed he to vote in the Spirit.

Rather than a trojan horse, I think Bush saw her as wily as a serpent - in keeping with the Biblical injunction to the Saints to comport themselves thus.