SCOTUS-a-Go-Go

by Kagro X

Here are a few of the most interesting nuggets to chew on while we wait to see how badly Iceberg Miers has damaged the hull of the Bushtanic.

1. Arlen Spector may not be thrilled about piloting the ship.

The chairman of the Senate Judiciary Committee said Sunday he plans to vigorously question Supreme Court nominee Harriet Miers about her qualifications because she has not proved to him she can handle the weighty issues that come before the high court.

But on the other hand:

"I think she may well turn out to be the best qualified once we give her a chance to be heard," Specter said on ABC's "This Week." "But when you deal in constitutional law, you're dealing in some very esoteric, complicated subjects that require a great deal of background."

Mixed signals, at best. Is it time for another "Scottish compromise?"

Judiciary Committe "conservatives" (and I'll explain the quotes later) may be swayed enough by the negative reaction to Miers to oppose her nomination. The $64,000 question is, will they abandon their party to make their point? If their hints are to be believed, we might guess how they'd vote on approving her nomination for Frist's much-lusted-after "upperdownvote." But what if Specter offers them the opportunity to vote on an unfavorable recommendation instead? That gives you a chance to "oppose" her without preventing the "upperdownvote," and robbing the GOP of their favorite play: labeling Democrats as obstructionists.

2. For those still in doubt about the value of the Democratic strategy on the appeals court judges, this excellent analysis:

The failure of the Republican leadership in the Senate and the White House to swiftly end the Democratic-led filibusters came back to haunt conservatives last week, because it was one of a confluence of factors that led to the surprisingly contentious reaction to the nomination of White House Counsel Harriet Miers to the Supreme Court.

Partly because of the Democrats' success in filibustering appellate court nominees, Bush had a shorter list of candidates to examine for the Supreme Court. Highly qualified prospects were unavailable, deemed too inflammatory by Senate leaders or, as in Estrada's case, unwilling to re-enter the fray.

How so?

[T]he seeds for Miers' nomination were sown when a group of Senate Democrats, newly in the minority and chastened by almost unprecedented losses in the 2002 elections, decided to gamble and filibuster some of Bush's most prominent appeals court nominees.

Their success in blocking Bush's top women and minority nominees led Republicans to try to change Senate rules so judicial nominees could not be filibustered. That divisive fight was resolved only after a bipartisan group of 14 senators came together in compromise.

And for those who would have preferred to have the fight play itself out then and there:

Some believe the controversy has forced Bush, and perhaps future presidents, to abandon more ideological candidates. "It's moderated the nominees," [John] Breaux, who is no longer in the Senate, said in an interview last week.

Compare that with what Breaux had to say on the subject in 2003:

"Look what we have facing us: We're on orange alert (for terrorism), people are stockpiling water and duct tape, we may soon be at war with Iraq," said then-Sen. John Breaux, D-La., who emerged from that meeting insisting a filibuster was "not the right thing."

Anyone else think so, too?

Republican sources in the administration and on Capitol Hill agreed the filibuster episode was a factor that led Bush to Miers, a longtime Dallas lawyer whose lack of a paper trail and cordial relations with Senate Democrats, officials believed, could head off a bruising battle.

The upshot of all this? Bush's short list was severely restricted, with the obvious conservatives drawing pre-emptive fire from Democrats, and lesser-known "stealth" candidates drawing fire from Republicans, or in some cases, simply refusing to be considered for fear of stepping into the maelstrom.

And true to form, Trent Lott remains ready to tell anyone who'll listen how lame Frist really is:

Former Majority Leader Trent Lott, R-Miss., who was ousted in late 2002 after making racially insensitive remarks, has criticized Frist for not moving more swiftly and forcefully on the issue when Estrada was first blocked, suggesting the situation could have been averted.

Lott has now refused to endorse Miers and said he could think of many other more qualified nominees. The Miers nomination also stoked simmering resentment among Senate Republican staffers, who complained that the White House had long failed to grasp the politics of the confirmation process and unnecessarily alienated Democrats.

"The administration has acted as if the president's job is nominations, not appointment," said an aide to a top Republican senator. "They've made the base happy with lots of good nominations, but they have done zilch to get them confirmed."

3. Finally, there's this important observation: There's a difference between the religious right and actual conservatives -- hence the quotation marks around the word in item #1:

"Right now, except for the evangelicals, who are excited because they finally have one of their own, I think largely the (conservative) movement is doing nothing" for Miers, said Paul Weyrich, a long-ago Milwaukee newspaper reporter who went on to become a key conservative activist in Washington.

Dobson's falling in line making more sense, now? It seems so clear, in hindsight. Yet most of the liberal blogosphere, I think, was of the opinion that Miers' lack of clearly "conservative" credentials would cost Bush the support of the "wingnuts," typically defined (to the extent that they've ever been defined at all) as the religious right -- the evangelicals Weyrich speaks of. Here, we find that the evangelicals are not only slowly climbing back on board, they may in fact be the only supporters Bush can count on in the early going. Has he made his "balloon payment" after all? And if so, what does that mean for all those wringing their hands over "who comes next?" if Miers goes down to outright defeat?

But don't get too comfortable. Weyrich may be tuned in to the right wavelength:

Weyrich said Bush was avoiding a fight he could have won.

"I've been around for almost 40 years. I know what fights can be won and what can't, and this was one that could be won hands down," Weyrich said. "The people are on our side when it comes to the Pledge of Allegiance and parental notification and all the different issues coming before the court. There is no downside to that fight. But to run away and hide and try to present somebody who doesn't have any real record, I think is a terrible mistake."

So, the result of a Miers defeat would doubtless be a terse note to evangelicals -- "we sent up one of yours and you couldn't get mainline Republicans on board, so you've still got some learning to do." But the big question remaining is, would the follow-up nomination be of a mainline conservative who could be quickly confirmed but might not satisfy the evangelicals, or is there still room to find a more rabid conservative (not "conservative") who might satisfy both wings, and still make Senate Republicans  comfortable if it becomes necessary to have this "fight he could have won," namely, of course, the nuclear option?

 

Comments

[Zzyzx]

Ok, I'll bite.

My question is, is there a point at which an entire political party can be so blatantly, visibly corrupt that it can, as a whole, be condemned like an unsafe building?

Given the travails of Abramoff, Delay, Rove, Israeli spying/collaberation, etc. is there a way to say, legally, that this institution is so completely compromised that their legal pass card is revoked?

[Zzyzx]

Crap! Comment intended for open thread, below.

[DHinMI]

Regarding the Dem success with the Nuclear Option battle, I can't remember where I read it last week--probably the WaPo--but somewhere I read that Bush had floated the idea of nominating Priscilla Owen, and it was shot down by Senate Republicans, who told him they didn't think they had the energy and political capital to get her through.

[radish]

Ayuh. The big question in my mind (given that I agree with the general analysis here) is whether the Dems will take advantage of the golden PR opportunity Miers' nomination presents. Sure, the evangelicals (aka the "conservatives") are ultimately going to stay on board with Miers in particular and the GOP in general because they have nowhere else to go. But that doesn't mean her confirmation can't -- or shouldn't -- be used as a wedge between them and real conservatives.

Maybe she's a lock to overturn Roe, but maybe not. She seems to be a lock to push for an imperial executive as long as Shrub is in office, but after that who knows. And while I might easily be wrong I don't agree with the folks who are saying she'll just be Scalia's third vote or even Roberts' second. Her actual decisions are unknowable so there's no point basing any present-time decisions on them.

However, there are a lot of good reasons to use the hearings as bully pulpit. To give just one potential line of inquiry: "Would Ms. Miers agree here and now to recuse herself from cases which would potentially effect other members of the WH staff? Under what exact conditions would she consider it necessary to recuse herself? Does Justice Scalia's refusal to recuse himself in the Cheny case conform to her philosophy?" Etc etc... She may not provide a lot of opportunity to ask about specifics of case or con law (though it would be interesting to hear how she deals with the sort of minutia that Roberts excelled at) but there is no reason whatsoever not to push her hard on abstract questions about ethics, separation of powers, civil liberties... Not to attack her -- to attack the GOP.

We live in such a naked-emperor, shh-dont-talk-about-it political environment that plain old sunshine can function as a wedge. If Dems continue to act like they have something to lose by being outspoken about Republican corruption and incompetence then November of 2006 will just be another huge letdown.

[Newsie8200]

You need to post this at DKos.

Just to see if there'll be a few who are willing to reconsider their prior vitriol lobbed at Senate Democrats.

[DHinMI]

Newsie: you mean consider, but not publicly admit to reconsidering, right? ;-)

[Mary]

Nice analysis, Kargo X. It seems to me that if this is true, then the Democrats should up the stake. Even though Zzyzx posted his comment on the wrong thread, it seems that it was relevant here as well. This administration has proven itself unworthy of having our confidence on anything. That being, why should the Democrats help Bush in any way get a stealth candidate on the court where that justice could be used to destroy the right to privacy and the use of the commerce act as a basis of federal (environmental) laws? Now that he is weak, make him really work to get his nominee through and Democrats should even filibuster if they cannot get real assurance (like a real record) that Miers will protect these basic laws. If she goes down, then let him put up a real fire-breather and have that one go down too. (Despite the radical right's assurance that the American public would back their side, most Americans think the radical right are nuts and do not want the American taliban making our laws.) Eventually, the 2006 election will be here and the American public will have one more chance to show whether they trust Bush enough to put someone on the court that will change their rights for their lifetime. There is no reason for the Democrats to be at all nice about this candidate - after all, the American public does not agree that Rove-v-Wade should be overturned or that the corporate powers should have the right to destroy our environmental laws.

[Meteor Blades]

I've already reconsidered my vitriol, but I haven't changed my mind. My complaint with the Democrats from the get-go was the she's-a-nice-lady praise offered up five seconds after Miers's nomination was announced. Standing aside and letting the GOP devour itself is a terrific approach, and I heartily approve, but this strategy doesn't require saying nice things about the nominee. Better to say "We'll see her at the hearings" and leave it at that.

+ + +

What I think is telling so far, regarding the Republican response, is that Miers is not going into these face-to-face, one-on-one meetings with Senators and coming away having generated changes of heart, at least not vocal ones. She meets. The Senator says the meeting was warm and informative, but instead of saying something glowing about this "good" nominee or "very good" nominee, says that no decision about how to vote has been made. That can't be good for Miers's chances. Seems to me that if you can't persuade a Senator in a one-on-one, chances are you're not going to be persuasive in the hearings. It all comes down to peer pressure, constituent pressure and White House pressure. Doesn't sound as if there'll be much of the first two, and the pressure that Bush's crew can exert these days is attenuated, to say the least.

Are rightwing evangelicals climbing aboard now because they, in part, see Miers as one of their own and view rightwing intellectuals like Will and Krauthammer and Kristol as just part of the hoity-toity, untrustworthy elite? Is - gasp! - class (broadly speaking) an issue with this nominee? Is she just not good enough to be enrolled in the ranks of hoi oligoi?

But the big question remaining is, would the follow-up nomination be of a mainline conservative who could be quickly confirmed but might not satisfy the evangelicals, or is there still room to find a more rabid conservative (not "conservative") who might satisfy both wings, and still make Senate Republicans comfortable if it becomes necessary to have this "fight he could have won," namely, of course, the nuclear option?

Maybe I'm missing something, but I don't personally read most of the rightwing intellectuals who have been screaming loudest against Miers as suggesting a "mainline" conservative as an alternative. It seems to me their chief argument all along has been for someone with gravitas and views that fall inside the parameters set by Scalia (and toadie Thomas). "Mainline" offers too many is-the-nominee-another-Souter variety.

[DHinMI]

Mary, I'm not sure if Rove-v-Wade was a typo or an inentional pun, but it was funny either way.

[DHinMI]

Are rightwing evangelicals climbing aboard now because they, in part, see Miers as one of their own and view rightwing intellectuals like Will and Krauthammer and Kristol as just part of the hoity-toity, untrustworthy elite? Is - gasp! - class (broadly speaking) an issue with this nominee?

Remember, at least two of those guys aren't in the right tribe. And as you know, there's long been tension between the paleos and the neos, with the fundies accomidating the neos only because they're currently in with the WH because of Cheney and (the now mostly departed) ideologues at DoD, State and the West Wing. Had Bush lost the second time, there would probably have been a big bloodletting of the neos, or at least calls for such, because the paleos and the fundies aren't really imperialists the way the neos are. Add in the fact that Kristol supported McCain in 2000, and that Will...well, Will is just a weenie, and I don't find it hard to believe there would be tension between them and the fundies.

Most of the TV pundits aren't movement conservatives who are tight with the fundies. And push come to shove, I'll bet few of the pundits are really for overturning Roe v Wade or the other various relgiously-inspired policy prescriptions. So I could see this rift being real.

[jonnybutter]

Most of the TV pundits aren't movement conservatives who are tight with the fundies. And push come to shove, I'll bet few of the pundits are really for overturning Roe v Wade or the other various relgiously-inspired policy prescriptions.

I see it as the Tacticians vs the Rubes. The bow tie brigade knows full well that abortion is much too fertile an issue, in the abstract, to screw up by actually resolving it, by having the fight out. Abortion is the keystone of their political empire. The Rubes OTOH, honestly or sometimes 'honestly' believe abortion is murder. The bowtie gang has cultivated this ghastly fetish, and now it's time to pay the bill. To me, the real rift in the party has to do with the 'deal with the devil' the Reagan movement made.: The Curse of the GOP. The Fundies are the weak spot in the coalition, because they were just annexed for a while. The bowtie boys, along with most other people, don't like the Fundies all that much.

It's interesting that the 'NO' backfired. I can think of several instances of the WH behaving contemptuously towards their own congress over the years. That bill is coming due now, too, maybe? Absolute Discipline chaffs after a while.

[Newsie8200]

Meteor Blades... I wasn't talking about you.

I'm talking about the people who can't make an argument beyond "Vichy Dems!"

You put forth well-reasoned arguments.

[Melanie]

Kagro,

Links?

[Steve]

I find it interesting that it's been a week since the nomination and most of the people who were initially skeptical remain skeptical. If Miers were truly the ultimate stealth wingnut, as some members of the tin-foil Left like to theorize, you would think the White House would have acted by now to reassure the most vocal doubters. And I totally don't buy the idea that the dissent is all a ploy - there's no way it helps Bush to have so much vitriol aimed at him, and Republicans could easily say something like "I'm skeptical, but I'm going to reserve judgment until the hearing," without making anyone suspicious. But instead the opposition has been much more pointed than that.

If Rove could reassure Dobson with a phone call, then why couldn't he reassure Brownback? For that matter, why couldn't the WH have brought those folks BEFORE the announcement to avoid all the Brownback blowback? The answer must be that whatever Rove has to offer in the way of assurances, it must be wafer-thin.

[Kagro X]

Melanie, are you taking my breakfast order? I prefer patties.

What can I get you, specifically. Let me know, and if I have a link for it, I'll provide it. If not, I'll clarify what's my own conjecture and what's not, if that's the issue. I only used three newspaper articles in this piece, and they're all linked. I didn't introduce each clip with a link of its own unless it came from a different article than the clip above it. So any indented blockquotes that aren't attributed immediately above should be assumed to have come from the last article linked to. That was my method.

Steve, my guess as to why Rove could buy Dobson's confidence but not Brownback's is the message was the same, but the recipients were different. Dobson's not accountable to his constituency in the same way Brownback is. While I consider them both in the evangelical camp, only Brownback risks anything in particular by going along with Rove's assurances. Dobson can always blame any ill effects on the "strange and mysterious ways" thing.

[Mimikatz]

Good analysis, Kagro. As I said early on, Meirs has no natural constituency. The conservative legal establishment is tepid because they all feel better qualified and have an interest in Bush withdrawing her. Plus, she really doesn't fit the profile of the people they have been grooming. The evangelicals aren;t the conservtives, yopu are right, and the more she is painted as one of them, the scarier she is. Reid may have been extra effusive, but that may also have suckered Bush into a problematic nomination. The people who really know how to play this game, like Lott and Reid, have long memories and subtle minds. They appreciate how interconnected everything isin politics. They understand patience and timing. They are way ahead of most of us on the confirmation strategy, even though we need to push Reid and the Dems to be as strong as they can be. Thanks for the most recent of many informative analyses.

[texas dem]

Also, Brownback is reaching for a consituency larger than the Kansas evangelical community and larger than the Kansas electorate, and larger even than the insider community that determines a Senator's reputation and CapHill power. If he wants a spot on this or a future R ticket, he has to appeal to the entire R base, including the business/corporate class.

I have no sense of where the business class is on Miers. But I remember that Roberts was at the top of their list, while he was not at the top of the evangelicals' list.

I don't see what exactly Miers would offer them. Her tenure on the Dallas city council doesn't seem promising from a corporate perspective. Too fair-minded, just-the-facts, compromise oriented. Again, it's important to remember that the "swing vote" O'Connor was NOT a swing on business questions. (I'm a parrot here; I don't know this in any sense, but I'm repeating what I've heard.)

I'd love to hear from someone who actually knows shit on this subject. How does Miers look from a Wall Street perspective?

Also, this is probably a lot of what y'all meant with the conservative vs "conservative"/evangelical. The corporate class is near to the heart, if not the heart, of plain-conservative. But for folks like me, you gotta spell it out, or else I'll rain on the parade in comments.

[jonnybutter]

How does Miers look from a Wall Street perspective?

I don't think you have to be an expert to see that from the bidnis perspective, Miers looks just fine, probably - not great, but OK. The rift is between the two rhetorical enablers in the GOP: the intellectual conservatives and the fundies. I know they overlap a little (and both overlap with 'business', too), but the two are distinct political groups for the most part (the former has libertarians who are mostly not religious at all). The 'bowtie faction' just saw Bush defer to (placate) the fundies instead of them on their most important issue, and they are pissed about it. Bush promised a Scalia - who is both an 'originalist' (sorta) and a conservative christian. He gave them Miers, who is a cypher. Importantly, they see the Miers nomination as emblematic of this 'adminitration's' half-assed, sloppy, ad hoc-ism. Their whole government-shrinking rationale is that government should do fewer things, but do them very well. Bush doesn't walk the walk, and is clearly not 'one of them'.

The Bowties' business is to be the 'conscience' of the conservative movement; Big Business' business is bidnis, and they're getting just about everything they want from this government, so I don't see why they'd be anything but sanguine about Miers and the rest of it.

[texas dem]

Hm.

I'm inclined to see these "bow-tie conservatives" (Will, Brooks, etc) as an explicit front for the pro-business white upper class. I don't much think they careen around on their own brainiac courses and crusades.

If all they represented were themselves and their nerdy cousins, I don't think they'd have any juice; they wouldn't be important commentators, and they wouldn't be in the op-ed/TV rotation. I've been assuming that since they're in the mix (and this is George Will in particular), that on certain types of subjects at least, they're stand-ins for the opinion of some larger constituency, probably the business class.

Anyway, that's why I take their opposition as a symbol of the potential opposition of big bidness. I don't think these people are really intellectual free-agents whose sensibilities have been offended by an SMU crony, because I don't think they're principled, conscientious free-agents at all. (For instance, they sure do know how to shut up about I.D., a similar type of affront.) And these people are broadly allied with the Federalists, the Constitution-in-Exile, and the end of the regulatory state. So if they're pissed, I'm wondering who else might be pissed too.

Also, best as I can tell, Big Business needs some very specific types of rulings in the future, not just Anthony Kennedy-esqe friendliness. Miers would certainly give them that, but if they need Scalia-scale revisionism, that won't be satisfactory.

[jonnybutter]

You have a point, TxD. I wouldn't go so far as to say that big business (a vague term!) is necessarily entirely happy with Dubya, and they may be more alarmed about him than we know. But I think the political infrastructure bidnis pays for (ie the bowtie boys) is cheap at twice the price, and is just seen as part of the cost of doing business. The Grand Bowties, however, really believe in their ideology and have been working their cause for decades, even before it was lucrative and glamorous. Yes, some of them can be spineless (ID), but they have to draw the line somewhere. They'd been waiting for SCOTUS for a very long time, being 'expedient' when they felt they had to (ID) all for this moment. They pimped for Bush and he betrayed them. You're not going to be able to completely shut them up, even if you want to, even if you (bidnis) fostered them. And I'm particularly thinking of intellectual conservatives in the Brookheiser-mold, rather than the pretentious moons like Will and Brooks, who get their cues from the intellectuals (but not only from them). Brookheiser, WF Buckley, et. al. really are principled, and will say anything they feel like saying, no matter who's paying the bill. That's the original strength of the conservative movement. No matter how full of shit it is, you have to have some sort of intellectual basis (I'd call it 'intellectual enabling') for a movement like the present GOP juggernaut.

On the other hand, you may be right. I wonder, though, if it's really in the multinational's interests to all at once radically change the country into what it was - politically - in the 19th century. Yes, they want less regulation, but they don't want chaos. And they're already getting: the chance to actually write legislation, tax breaks and welfare, and a dearth of regulation - as it is now.

I don't know. Interesting question.

[jonnybutter]

I think the True Believers - both the fundies and the bowties - are being used. The true political consensus on the (roughly speaking) business-right is probably for delaying pulling the trigger - on either abortion or the commerce clause - for as long as possible. Once you pull the trigger, what are you going to run on next time? And how much more big business-friendly can a government get than ours is right now, before diminishing returns?

[texas dem]

That is interesting. I had assumed they were ready to pull the trigger on the commerce clause, particularly cause they don't really run on it, and even if the libs get the government back in a backlash, it won't be good for anything; the government won't have the power to do half what it does now, especially in economic areas. But, maybe they're not as eager as I thought.

Can anyone see Miers voting to restrict the commerce clause the way these Constitution-in-Exile people want? I'm not sure anyone can be sure either way, which is probably why the right is so pissed.

[jonnybutter]

I had assumed they were ready to pull the trigger on the commerce clause, particularly cause they don't really run on it,

They do run obliquely on stuff like that among the bowtie crowd. But actually pulling the trigger - on that as well as abortion - would be deeply unpopular in the country as a whole, and that would be the end of GOP hegemony. They're more valuable as issues than as policy.

Who the hell knows about Miers?

[Arnie]

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[Arnie]

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[Arnie]

.creare i temi nokia
basquet-posiciones de los jugadores en la cancha
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pasqua disegno per bambini
fotos del final de la fea mas bella
naked melina perez
animali superdotati
sara-varone foto
melita tonioli nuda
sesso con gli animali