Posted on 10/06/2005 11:21:55 AM PDT by 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.
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I agree. However, isn't it about time that the RINOs get smoked out for what they are? Either we will have a party that conservatives can support or there will be a party that will not win elections. It is time to make a stand.
The Nation will do exactly as the main stream media tells them to do.
Should the Republicans fillibuster a S.C. nominee, the m.s.m. will incite the Nation to riot.
Should the Democrats fillibuster a S.C. nominee, the m.s.m will remain quite as a mouse in a church house.
In this case it will be the Democrats doing the fillibustering.
I think you are talking about the wrong branch of government there. It's the senate Republicans who are GUTLESS!
McCain makes everything more difficult - his latest being to restrict interrogation of terrorists.
CFR, Gang of 14, the coddling of terrorists - there is nothing he has sponsored that isn't a disaster. And yet there are people who think this guy is smart enough to be president.
Thank God he will be 72 by November 2008 and the American people still worship youth.
I do.
The more I reflect on it, the more I'm confident that Bush is looking two moves into the future. He's put this one in the bank, and is looking at his final two Supreme Court nominations, which are yet to open up, but which he must win to solidify his record as President.
In that future calculus, Bush is counting on Republican gains in both the House and Senate in 2006. You might think that the House is irrelevant to Senate battles. Not so. It is a two-rail shot.
The stronger hold that Republicans have on the House, the more pressure Bush can put on squish Republicans in the Senate, who after all still have their interests in passing ordinary legislation. Bottom line: I think that Bush & Company are already planning on two knock-down drag-out fights to replace (for instance) Ginsburg and Stevens, with a new, working majority of 60 in the Senate.
Congressman Billybob
And, don't make the mistake of judging anyone's current ability to understand Supreme Court processes, on what he/she did in school or in a clerkship, a quarter century ago. By contrast to Coulter, for instance, I did not go to an Ivy League law school (undergrad, only). I didn't clerk for any judge at any level.
On the other hand, over the decades I've had majorities in the Supreme Court quote my work with approval in making their decisions. Once the Court did unanimously what only I had suggested in a brief (Bush v. Gore, Round I, December, 2000).
Does that mean I'm always right in prognosticating on Supreme Court cases, or nominees? Not on your tintype. However, I'll stack my qualifications to comment up against anyone, including Coulter and Will, and especially the likes of Buchanan and Delgadio. Please click below.
Congressman Billybob
I am impressed that you have been cited. That is great, quite an accomplishment. I mean it.
I mentioned Ann and repeated it knowing she would never get nominated. Going back a little, I am very sorry that the castrati let the Senate bork Bork. That was the beginning of the end. Now it is accepted practice.
I do not think that only the Ivy Leagues can give a great legal education, etc. etc. Yet I remain disgusted with Bush for throwing away a great opportunity, one for which I have been waiting for many years. He had great candidates. Scalia would have made a great chief justice. I am reasonably happy with Roberts, but he is still an unknown. I would like to have seen two certified Constitutional originalists.
I do not vote for the person but for the ideas. Bush has shipwrecked his party by promoting Democrat ideas and supporting RINOs like Specter.
Well, you be sure and do your part to make that all come true.
You're right about one thing though: historically speaking, "certain" so called conservatives have always used their votes as blackmail.
Exactly, and that's why he picked Harriet Miers and because 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.
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