October 27, 2005

Miers Withdraws From Supreme Court Consideration

Hatched by Dafydd

As expected, President Bush did not withdraw her; from what I have read, Harriet Miers withdrew herself.

At this point, the best thing for the party would be if Bush were to nominate one of the hard-core judicially conservative women whose names have been floated... and I hope he does; but Hugh Hewitt's prediction of the Democratic response has already come true:

Under withering attack from conservatives, President Bush ended his push to put loyalist Harriet Miers on the Supreme Court Thursday and promised a quick replacement. Democrats accused him of bowing to the "radical right wing of the Republican Party"....

"The radical right wing of the Republican Party killed the Harriet Miers nomination," said Senate Democratic leader Harry Reid of Nevada, who had recommended Miers to the president.

So the question is, will the "Gang of Fourteen" use the replacement of Miers with (say) Priscilla Owen or Janice Rogers Brown to declare "extraordinary circumstances" and vote against the Byrd option, allowing judicial filibusters to continue? Or will they inform Bush that they plan to do so -- pushing him to nominate someone like Alberto Gonzales instead? I'm not sanguine about the possibilities.

Hugh made another prediction -- well, more accurately, he proposed this as a possibility and asked whether the Rebel Alliance would accept a measure of responsibility if it happened. AP raises the same issue; are they reading Hugh's blog?

On Nov. 30, the court will hear arguments on New Hampshire's parental notification law for abortion, which a lower court said is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health. O'Connor has been expected to vote to strike down the law. That case also could determine the legal standard for challenges to other states' abortion laws.

Also in late November the court may decide whether it will hear the Bush administration's appeal of a 2003 federal law that bans the type of late-term operation known as partial-birth abortion. Lower courts have said the law is unconstitutional, because it lacks a health exception.

So if one or both of these cases turns out to be a 5-4 decision to uphold the lower court with Sandra Day O'Connor in the majority -- and if there is at least a pretty good chance that Miers would have voted the other way... then is it unfair to say that it was the anti-Miers opposition that took away parental notification and/or a ban on partial-birth abortion?

(I believe that if the new justice is seated after those cases are heard, he or she cannot participate in the decision... which means the Court may well split 4-4, leaving the lower-court rulings in place. Am I wrong?)

Time will tell... and not very much time at that.

Hatched by Dafydd on this day, October 27, 2005, at the time of 7:23 AM

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» Miers Withdraws -- Did we win or lose? from Small Town Veteran
... It's tempting at this point to stand out by the road shouting "We won!" but did we win, or did we just not lose as badly as we could have? In my mind, nobody "won." George Bush created a lose/lose situation when he nominated Miers to begin with, an... [Read More]

Tracked on October 27, 2005 2:12 PM

Comments

The following hissed in response by: RBMN

It seems in the case of Harriet Miers, either for the first time in his presidency, Bush was a rotten judge of character, or maybe Bush was the only accurate judge of Harriet Miers' character--that had changed with her religious awakening. We'll never be able to judge for ourselves now.

The above hissed in response by: RBMN [TypeKey Profile Page] at October 27, 2005 7:38 AM

The following hissed in response by: Aitch748

In a way I can't blame her for bowing out, but it's still a shame. She should have been able to defend herself and had her chance to shine in the Senate, if shine she could. Now I guess we'll never know.

Part of me rebels at the idea of rewarding the borkers by immediately nominating a Luttig or a McConnell, and I hope that Bush finds and nominates another Miers somewhere, i.e., someone without a long paper trail, and someone who promises to inject a little common sense into the decisions of the Court, and ESPECIALLY someone not on NRO's short list of approved nominees. Plus, Bush still has only three years left to get his choices onto the Court, and the NRO types had better start hoping that it is Bush who gets people onto the court and not (say) Hillary (or whoever Bush's successor is going to be). But apparently that argument hasn't prevailed in Miers case, so it's entirely possible that it will be the Right that helps deliver the Court to Hillary (if the Right starts doing their own long-running filibuster-by-another-name of Bush's nominees for three years, and if the Democrats nominate Hillary and the Republicans nominate another Bob Dole).

The above hissed in response by: Aitch748 [TypeKey Profile Page] at October 27, 2005 7:50 AM

The following hissed in response by: Jimmie

Regarding the question on the two abortion cases, I'd have to say "Yes, but...".

I think you're making a huge assumption that Miers would likely have voted to uphold either law. At best, I have no real idea whether she would or not and I don't see how anyone else could have much of a clue either. At worst, what we've read from her suggests that she would have voted against the laws.

My question in return is: would you have been comfortable knowing that the judicial equivalent of a one-armed bandit was going to be the swing vote on these two cases?

The above hissed in response by: Jimmie [TypeKey Profile Page] at October 27, 2005 7:55 AM

The following hissed in response by: senorlechero

The conservofascists have declared the left to be right.

If anyone wants to know what that means I've blogged on it this morning.............

http://senorlechero.blogspot.com/2005/10/ivy-league-glee-club-is-doing.html

The above hissed in response by: senorlechero [TypeKey Profile Page] at October 27, 2005 8:37 AM

The following hissed in response by: beebop

I hope when the day comes that we can appeal to the better angels of our nature the name-calling that has gone on here can be forgiven. Let me start - I used the term "goosestepping support" when I meant lockstep, unblinking support. My bad, I'm sorry.

Now, will you amend your opinion of a) George Will as a pencil necked geek? b) David Frum as someone deserving the hottest spot in hell? c) Paul Meringoff as Joe Biden's dim sidekick?

I agree McCain really screwed the pooch with his gang of 14 deal, I also think he had sincere motives that have not been treated fairly by the blogosphere, e.g., by Hugh Hewitt, Powerline, etc. Maybe someday we can have a debate on why McCain fires up the wrath of so many on the right, especially those that were asking for Miers to be given the benefit of every concievable doubt.

Now will you admit that despite pure motives, Bush's flaws were on display here, not his virtues? I think loyalty to friends carried to excess, and a hubris that thinks everyone is as predictable or dependable as he is, are forgivable; if a man has to have flaws, these are the least objectionable. I still think this nomination was an unacceptable risk for this country, however, and had to be defeated.

The above hissed in response by: beebop [TypeKey Profile Page] at October 27, 2005 8:48 AM

The following hissed in response by: Patterico

"(I believe that if the new justice is seated after those cases are heard, he or she cannot participate in the decision... which means the Court may well split 4-4, leaving the lower-court rulings in place. Am I wrong?)"

I believe so. I believe that, if the new Justice is seated before the case is *decided*, then it will be reargued. Hugh is worried about the situation where the case is decided first, which is a possibility.

In that case, I would personally feel no responsibility for having opposed a poorly vetted nominee -- it's the White House's responsibility and fault. But even if I were to be tagged with fault, I'm looking at the long-range picture. One decision vs. 15 years of Justice Harriet Miers: the choice is obvious.

The above hissed in response by: Patterico [TypeKey Profile Page] at October 27, 2005 11:49 AM

The following hissed in response by: senorlechero

Patterico.......This nominee may or may not have been "poorly vetted"........obviously Bush did not expect his "supporters" to ambush her like they did.

But you need to take responsibility for your actions........sinking THIS nominee, and whatevery happens because you sunk this nominee is indeed the result of YOUR ACTIONS. If Bush nominates Luttig or McConnel and they are filibustered, and our spineless republican senators act like they have for 5 years now........Bush may never get another nominee on the court........in which case the next President.........most likely a democrat........will get to appoint 3 or 4 judges...

That sir will be YOUR FAULT

The above hissed in response by: senorlechero [TypeKey Profile Page] at October 27, 2005 12:14 PM

The following hissed in response by: Dafydd ab Hugh

Beebop:

Now, will you amend your opinion of a) George Will as a pencil necked geek? b) David Frum as someone deserving the hottest spot in hell? c) Paul Meringoff as Joe Biden's dim sidekick?

Direct questions; direct answers:

  1. I have despised George Will for more than a dozen years now; it has nothing to do with his latest thuggish assault on Miers -- which is entirely in character with this low, mean "Marquis of Carabas."
  2. David Frum cannot take back his campaign of destruction against Miers... and worse, I worry that this victory of his will give him a taste of power that might prove more alluring than any political ideology.
  3. Say, Beebop -- is your middle name "Iago" by any chance? Please don't play "let's you and him fight." I have never called Paul dim; I do not think he is dim -- I think he is highly intelligent. But we all see things, not the way they are, but the way we expect them to be. If you (or I or anybody else) are thoroughly primed to see liberalism, and if you read quickly, you are apt to make a mistake. There simply is no question -- and not even Patterico has disputed -- that Miers did not call abortion protesters "terrorists." Nobody else thinks she did. But that is the impression Paul came away with... not because he is "dim" (which he assuredly is not) but because he read the speech after eating too many pieces of angry-candy, as Harlan puts it.

Does that answer your questions, Beebop?

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 27, 2005 2:08 PM

The following hissed in response by: Patterico

There simply is no question -- and not even Patterico has disputed -- that Miers did not call abortion protesters "terrorists."

You have an annoying habit of imputing opinions to me that I have not expressed. In another thread you actually said that I agreed that she did not call abortion protestors activists. I had said no such thing. In truth, I don't know whether she did or not. Nor do I recall Paul Mirengoff making any specific reference to that passage. The speech I read was liberal through-and-through. That's what concerned Paul and me.

The above hissed in response by: Patterico [TypeKey Profile Page] at October 27, 2005 2:35 PM

The following hissed in response by: Patterico

"That sir will be YOUR FAULT"

I'd love to think you're right that I had some substantive impact on the decision to have Miers withdraw, but I strongly believe that you are wildly overstating my actual influence (which was, I submit, close to nil). I think what happened is quite simple: the speeches came to light, Senators read them and were appalled, and Senators told the White House that the jig was up. Bloggers like me have far less influence than you think, is my guess.

The above hissed in response by: Patterico [TypeKey Profile Page] at October 27, 2005 2:38 PM

The following hissed in response by: senorlechero

Patterico

Of course I agree that you personally had very little influence in the ambush and massacre of Miers. But you did what you did, and many others, the ring leaders being Frum, Ingraham, Fork..I mean Bork (who by the way was un-intelligble this morning on the radio....."Ugh.....Bush.....uh, grunt-ugh.....mistake.....ugh......." followed by more grunts and pauses than most pigs make when their head drops into the slop), and Coulter........the new generals of the *************** army, all worked together to destroy any chance the president will get another nominee through anytime soon. Perhaps he will get a person suitable to you appointed in 18 months or so, after O Connor shreds more of the constitution, but I'm not hopeful

I hope I'm wrong (as I was thinking Miers had the fortitude to stand up to a bunch of bullying blowhards from the Ivy league, who couldn't fight their way out of a spit wad war) but I don't think so

[Post edited to remove Godwinism. --the Mgt.]

The above hissed in response by: senorlechero [TypeKey Profile Page] at October 27, 2005 3:10 PM

The following hissed in response by: beebop

Daffyd,

Well, I guess passions haven't cooled on your part; but my questions are answered. Will might not be everyone's favorite, and I agree his ad hominum columns are his weakest, but if you want to collect enemies I think you could do better.
As for Frum, he didn't give'em hell, he told the truth and they thought it was hell. As for Mirengoff, you can't take back what you've written either, he (and every other commenter I've seen) read Miers speach quite differently than you and maybe Hugh. I don't think I was trying to cause a fight, I was just trying to point out that when everyone says you're drunk, you ought to sit down.

The above hissed in response by: beebop [TypeKey Profile Page] at October 27, 2005 3:27 PM

The following hissed in response by: Mike

The Barabas Right Whiners won a pyrrhic victory today and one we may all regret in November 2006.

It's a shame that the broad, but relatively quiet base of the Republican Party allowed itself to be hijacked by a vocal faction who cannot win elections without the right of center.

Meanwhile look at the damage that's been done:

* We've validated Democrat request for attorney-client documents from nominees working in the Executive Branch. Chief Justice Roberts might never have been confirmed, let alone nominated if that standard had been applied to his nomiation.

* We've also turned the rallying cry "Give them an up or down vote" upside down and given Ms. Miers only a hearing in the media, without the benefit of her reply.

Now, I pose a question to your readers:

Do you think the vocal right whiners of the Barabas wing of the party who threatened to burn their RNC membership cards and give "not one more dime" to the party will now step up and help repair the damage their fit of pique has caused?

Will our spineless GOP Senators suddenly develop a spine to defend an even MORE controversial nominee?

The above hissed in response by: Mike [TypeKey Profile Page] at October 27, 2005 7:11 PM

The following hissed in response by: senorlechero

Mike

No, they won't.............to both questions.

They are too busy having "victory partys", and too drunk with power to realize the damage they've done

The above hissed in response by: senorlechero [TypeKey Profile Page] at October 28, 2005 7:55 AM

The following hissed in response by: Xrlq

I think you're making a huge assumption that Miers would likely have voted to uphold either law. At best, I have no real idea whether she would or not and I don't see how anyone else could have much of a clue either. At worst, what we've read from her suggests that she would have voted against the laws.

What the hell have you read, aside from Paul Deignan's navel gazings? Miers expressly stated in a questionnaire that she would outlaw abortion if the courts allowed her to, and even expressed support for a constitutional amendment to outlaw the practice. That may not sound like a huge deal to a non-lawyer, but trust me, it is. Currently, WRT private behavior the Constitution prohibits slavery, bootlegging, arguably treason - and nothing else. It doesn't prohibit murdering the born, but if Miers had gotten her way, it would have prohibited killing the unborn. She never repudiated that statement; at most she gave a rambling speech a few years later with vaguely libertarian overtones some pro- and anti-abortion zealots have taken and run with. Plus, in the process of vetting other judicial candidates she's reported pushed President Bush on some nominees she did not consider sufficiently conservative.

The likelihood that a Justice Miers would have voted to strike down either of these laws (assuming she had been confirmed early enough to hear the cases and vote on them at all) is about the same as the likelihood that Justice O'Connor (assuming she stays on long enough) voting to uphold both.

The above hissed in response by: Xrlq [TypeKey Profile Page] at October 28, 2005 10:22 AM

The following hissed in response by: Dafydd ab Hugh

Xrlq:

All right, but right now, the anti-anti-Miers crowd needs to -- don't freak out -- reach across to the anti-Miers crowd, forget arguing who's at fault, and support not just the next nominee but also Bush's agenda.

We got a golden gift with Fitzgerald's investigation producing only a pop, not an explosion at the end. With that plus the Mulligan on Miers, here is our chance to show those fellows on the left what principled unity really looks like.

They think they saw a strong coalition in 2000, 2002, and 2004? Well, there they go again. And if they think that's the best we can do, they ain't seen nothing yet!

Dafydd

The above hissed in response by: Dafydd ab Hugh [TypeKey Profile Page] at October 28, 2005 12:42 PM

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