The Miers Support Team: Gloomy and Demoralized [Byron York]

National Review Online ^ | 10-20-2005 | Byron York

[Reagan Man]

>>>>Did you even read the article????

Yes. Obviously you place a lot of trust in unnamed sources. I don't.

[Kryptonite]

Welcome to Free Republic. 10/8/05

What are the Constitutional requirements for a SC nominee to be qualified?

[counterpunch]

So sue me I'd like to see her testify before the committee.

You may come to regret those words. It's going to be a bloodbath if she does, and this time it will be our blood spilled.

And all those "bright, skilled" Republicans like Souter, Stevens, Kennedy, and O'Connor have wrought more havoc on conservatives and the movement with their VOTES than you are willing to understand.

Much like Miers, most of those were "stealth" candidates. Don't be surprised if she turns out just like them. The little bit of her record that we know of suggests she may very well be. The only thing suggesting otherwise is President Bush. He knows her heart, you know. Just like he knows Putin's.

The law is what the Supreme Court DECIDES it is. You have a distorted view of the importance of holdings vs. opinions that my intimate knowledge of the workings of an appellate court simply cannot agree with, particularly in this day and age of constant results-oriented decision making at all levels of the judicial branch.

And the Supreme Court can undecide law. They also apply case history and Court precedent in new ways to new cases.

The Opinion is the foundation of the Court's Holding. A Holding based on a weak Opinion will not uphold. Bad future case law is the unintended consequences of poorly considered Opinions. Roe would not exist if not for the carelessly broad application of so-called "penumbral rights" outlined by the Opinion of the Court in Griswold.

Poke holes in the Opinion, and the Holding will collapse.

[counterpunch]

They can easily vote against her experience and qualifications and pretend ideology has nothing to do with it (which it does). There might even be some spillover where some of their prior unfair opposition to nominees begins to look more legitimate thank to the Miers nomination.

That is exactly what I have argued elsewhere.
With the Miers nomination, Bush has accomplished what Democrats never could:
Making Democrats appear reasonable and credible.

Now the next time they cry wolf, they will be taken seriously instead of being dismissed immediately as petty partisans.

I don't think a lot of these people understand just how much Bush has set us back with this.
You are one who does.

[counterpunch]

I recall the rule of 2s (testing out a catch phrase). Republican Senators have only voted against a Republican President's nomination on two occasions (Harlan and Thomas), and on each occasion only two such Senators voted nay.

It is a very, very rare occurrence, historically speaking.

Then why didn't Bush make a more respectable pick?
From what you say, he could have showed a lot more balls and nominated someone like Brown, Luttig, or Jones.

[Kryptonite]

What makes you think Miers is a liberal, like other Republican appointees who gave credence to the argument that transparency is best? Comparatively speaking, on her philosophy of law itself, there is much less for people to discern regarding Miers than Souter, Stevens, O'Connor, or Kennedy provided.

I don't necessarily believe that is a bad thing. I want to determine for myself how my own judgement stands the test of time AFTER hearing her testify. I enjoy a unique perspective on reading the judicial tea leaves for nominees. I trust myself.

Roe is an interesting case, not only because of it's use of Griswold's penumbras and emanations, but because of the pure raw emotion of a mother killing her baby.

Griswold is actually a more significant legal opinion because there is little emotion involved in a married couple having the right to use contraception. The reports I've seen had Miers agreeing with that holding, and rejecting Specter's inference that she agrees with penumbras and emanations.

There are many conservatives who cannot see what is right before their own eyes these days.

[SmoothTalker]

"What are the Constitutional requirements for a SC nominee to be qualified?
"


Bozo the Clown fits the constitutional requirements for a Supreme Court Justice. Doesn't mean he is a good nomination.

[Kryptonite]

What makes you think it is more likely that Republicans in the Senate would be more likely to vote Luttig, Jones, or Brown up than Miers?

I see Republican Senators wanting to learn more these days to prepare themselves for the hearings than coming out against Miers.

On the other hand, if Luttig, Jones or Brown were nominated, I can easily see each of the Republicans listed in my tagline coming out against the nominee before asking more questions.

[Kryptonite]

I like being a conservative. Conservatives like winning and aren't afraid of losing. We like football, baseball, NASCAR and other sports where there are winners and losers.

Conservatives win if Bozo votes as a conservative. Conservatives might only win 5-4 or 6-3, but they win just like the Astros over the Cards, if Bozo votes with a conservative majority.

[counterpunch]

What makes you think Miers is a liberal, like other Republican appointees who gave credence to the argument that transparency is best?

Based on two things.
1) That she was a politician. That tells us right off that she has an interest in activism. And by the look of how she came down on issues on the Dallas City Council (an impressive post if ever there was one) it is also quite clear that she took an interest in liberal social activism.

2) She doesn't seem to know a whole lot about Constitutional Law, Supreme Court case history, or Federal statutes. This leads one to believe that beyond the empty platitudes about "the Framers' intent" and "not legislating from the bench" that she doesn't actually have a well formed judicial philosophy. People who wing it like Miers has shown herself to typically find themselves on the squishy side of the Constitution.

The reports I've seen had Miers agreeing with that holding, and rejecting Specter's inference that she agrees with penumbras and emanations.

But that's just the thing. You cannot separate the Holding from the Opinion, or the Opinion from the penumbras.

Remove the penumbras and the Opinion has no justification and thus the Holding does not hold.

That is what is so troubling about Miers's answer to Specter. How can she agree with the decision but not the way it was reached?
Is she just saying she agrees because it's trendy? On what law then does she base this conclusion if not on penumbral rights of some hidden privacy clause?

Compare that to Roberts who was quite crafty and yet still clear that he sees a select right to privacy carved out in specific areas by the Constitution. He is on solid ground. Miers, on the other hand is just winging it.

[counterpunch]

Conservatives like winning and aren't afraid of losing.

If conservatives weren't afraid of losing then why was the White House so timid? Why wasn't Janice Rogers Brown nominated instead?
If conservatives like winning so much then why did Bush throw the game before it even started?

Even if Miers somehow manages to win confirmation, it won't be a clear victory for conservatives. But Democrats will claim it as a victory, because they defanged conservatives, and all they had to do is threaten threatening a filibuster.

[counterpunch]

What makes you think it is more likely that Republicans in the Senate would be more likely to vote Luttig, Jones, or Brown up than Miers?

Well wait a minute there. We're applying your 2-2 rule.
It doesn't matter if they're more likely to confirm one of them. According to your rule, they all would win confirmation. So the question is why did Bush go for the weakest candidate?

I think one of those named would have a better chance at confirmation than Miers because they aren't clowns. They actually know the law and they know what they're talking about. They wouldn't make the Senators feel embarrassed for them.

[AFPhys]

"Demanding jurists be qualified isn't hate!"
---->

What is required by The Constitution for a person to be a justice of the USSC?

[Kryptonite]

But that's just the thing. You cannot separate the Holding from the Opinion, or the Opinion from the penumbras.

Remove the penumbras and the Opinion has no justification and thus the Holding does not hold.

You're confusing even yourself. You're telling me that I cannot separate the holding from the opinion. Miers can easily agree that married people have a right to use contraception by adopting the same position as that established by concurrence. I want to respect your opinion but cannot.

I agree that she was a politician. The same Federalist Society people that she was dissing in her testimony under oath are now working with the White House to confirm her.

[flaglady47]

Conservatives win if Bozo votes as a conservative. Conservatives might only win 5-4 or 6-3, but they win just like the Astros over the Cards, if Bozo votes with a conservative majority.

Yes, but you don't have a clue how Harriet Miers will vote if appointed to the Supreme Court, any more than the rest of us do, as she has such a scant record, and there are contradictions galore on other aspects of her career. So you may or may not have a Bozo. Bozo may vote Lefto, and then, once again, the conservatives will be Lefto out of it, stuck with another lemon.

You may be right, but you very well may be wrong too. If Bush would have nominated a clear conservative, there wouldn't be all of these devisive threads on FR, because we would all have known where the candidate was coming from. Instead, we get a crony of Bush for a candidate, right after Bush was knocked for cronyism for appointing Brown to FEMA. Nice timing, eh? Real clear thinking on the Admin's part. And someone with no record, w/bad writing abilities, Senators who don't think much of her knowledge to the point that the White House has cancelled any more meetings w/them. And how is she going to cram a ton of constitutional law into her noggin in a 3-week period before the hearings? Good luck to her, if she doesn't withdraw, because the wolves are waiting for her behind the meeting room door.

[Kryptonite]

The rule of 2s is simply that Republicans have only voted against a nominee twice, with only 2 Republicans voting against each time.

The Gang of 7, on the other hand, would be much more likely to shoot a Luttig first and ask questions later, than they have shown over Miers.

[Kryptonite]

So you'd vote her down if you were a Republican Senator, having made your mind up before hearings were commenced, all because the White House isn't letting them have at her in private.

Let the Senate question her under oath before the public instead of complaining about losing power by depriving them of private meetings.

I like it. Puts me on a more level playing field with the Senate. I can't meet with Miers either. Makes me more likely to reach the right conclusion about her than if a power-grabbing Senate shaped the hearings after having more private meetings with her than they are getting.

[Kryptonite]

Even if Miers somehow manages to win confirmation, it won't be a clear victory for conservatives. But Democrats will claim it as a victory, because they defanged conservatives, and all they had to do is threaten threatening a filibuster.

That's really defeatist, IMO.

It presupposes that Miers isn't really a conservative. You can go ahead believing that all you want. I'll wait for the hearings to judge for myself.

[flaglady47]

"I like it. Puts me on a more level playing field with the Senate. I can't meet with Miers either. Makes me more likely to reach the right conclusion about her than if a power-grabbing Senate shaped the hearings after having more private meetings with her than they are getting."

You can like it, but you aren't the one voting or having to come to the right conclusion. The Senate decides. She may not even make it out of the judicial committee to get to a floor vote. You aren't one of the players here.

[counterpunch]

You're telling me that I cannot separate the holding from the opinion. Miers can easily agree that married people have a right to use contraception by adopting the same position as that established by concurrence.

Ah, but you make my original point!
Both Court Opinion and Concurrence cast the same vote. But only one of them can withstand the test of time. The poorly considered Opinion can be more easily overturned eventually, and yet it leaves a trail of bad law in its wake nonetheless.

So now tell me, what is more important, votes, or Opinions?
Miers may give the votes, but will her Opinions be written clearly or argued incisively? From the look of her past writing, the answer is "no." Will her opinions withstand the test of time? Will they enlighten minds and inform law? Will her Opinions help navigate back to a federalist Constitution? Or will her Opinions only further muddle Constitutional interpretation and set the foundation for still more poorly considered bad law?