Big Lizards:Blog:Entry “Where To?”

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October 28, 2005

Where To?

Hatched by Dafydd

I supported Harriet Miers' confirmation (with, as I said, caveats) because I thought it was bad for the party if she were rejected or forced to withdraw.

She was of course forced out, and I do believe damage has been done to the party -- hence to the country, because the Democrats are so wretched and such appeasers that anything that gives them political support is, I believe, bad for America. (If in the future they find their way back home to sanity, I will withdraw this sentiment.)

Damage has been done; do not be deceived. But repairs are still possible... if we act swiftly.

Clearly, the president must nominate someone who is acceptable to the judicial conservatives, but also someone who will not so turn off the Seven Dwarfs that they refuse to pull the trigger on the Byrd option, stopping a filibuster. That is not an easy task.

Hugh Hewitt suggests Michael McConnell. He is trying for an end-run in this case: McConnell was not filibustered last time around; the J-Com sat on his nomination for more than a year, but that was because of Jumpin' Jim Jeffords, ~~Republican~~ Democrat from Vermont, who gave the chairmanship to Patrick "Leaky" Leahy. (What with Leahy and Fitzgerald, I have decided that from now on, I will be instantly suspicious of anybody named Patrick.) Hugh's idea is that, having refused to filibuster McConnell in 2002 -- he was confirmed after the election which gave control back to the Republicans, but before the new Congress was even seated! -- the Gang of 14 would find it very hard indeed to yell "extraordinary circumstances" now in 2005. Thus, Hugh reasons, they wouldn't get the votes they need to stop cloture; so the "nuclear option" wouldn't even come into play.

Numbers, numbers, numbers. Both sides are plagued by numbers. Most Republicans (I think) want to eliminate judicial filibusters altogether. The principled argument is that the Senate has a constitutional duty to advise and either consent or reject in a timely manner. The filibuster leaves the nominee in limbo, neither confirmed nor chucked out -- and is an abdication of Senatorial duty. If he were rejected, the president could name another nominee; but with the nomination still pending, the slot just stays open. On the Supreme Court, that would mean an eight-justice panel that could end up splitting 4-4 endlessly, leaving appellate court rulings in place -- even when they contradict each other from circuit to circuit.

But to get this passed, they need at least 51 votes, one of which can come from Vice President Dick Cheney if the Senate splits 50-50. There are 55 Republicans in the Senate; so they can lose up to five Republican senators and still vote to end judicial filibusters; but if they lose six, they lose the vote (I am assuming no Democrats will vote for the Byrd Option).

The "Seven Dwarfs" (Republican members of the "Gang of 14") are John McCain (AZ), Mike DeWine (OH), Lindsay Graham (SC), John Warner (VA), Olympia Snowe (ME), Susan Collins (ME), and Lincoln Chafee (RI). Two others not in the Gang but still potentially trouble are Arlen Specter (PA) and Charles Grassley (IA).

I believe Chafee, Snowe, and Collins are very likely defectors on this vote; so the GOP can only afford to lose two out of the remaining six worrisome senators in order to push this through.

But the Democrats have their own numbers to fret about. They need 41 votes to sustain a filibuster (that is, to deny cloture, the calling of the question), and the Democrats have only 45 members in their Senate caucus. I believe that for any reasonable nominee, no Republicans (not even Chafee) will vote to filibuster... thus, the Democrats can only afford to lose four of their number and still possibly prevent cloture. For a popular candidate, they may have trouble with some of their own members of the Gang (the Seven Skunks?), including Ben Nelson (NE), Joe Lieberman (CT), Mary Landrieu (LA), Ken Salazar (CO), and Mark Pryof (AK); plus there are other "red-state" Democrats, such as Bill Nelson (FL) and Kent Conrad (ND). The Democrats must hold four of these seven to be able to sustain a filibuster.

Hugh thinks that there will be too many defections from the Democratic side for Judge Michael McConnell, and they will not be able to get their 41. I take a different tack, since I am always willing to consider politics, so long as it's not at the expense of the party or country. I would rather see Emilio Garza as the nominee, even though he is 58 years old (to McConnell's 50), because -- I will be very naked about it -- Hispanics are a very fast-growing voting group; they tend to be more culturally conservative than blacks, Asians, or Jews; and they have shown a willingness to vote Republican -- as much as 45% may have voted for Bush in 2004; so I want to see them encouraged by a Republican Party that recognizes their contribution. Since even the Rebel Alliance has said in the past that Garza is acceptable, I see no reason not to consider politics when deciding between two candidates who both earn the seal of approval. After all, if you don't win presidential elections, you don't get to name any judges at all.

Regardless of who is "at fault" in the Miers debacle, Bush must move swiftly to repair the breach in the GOP coalition -- both the elections coalition and the ruling coalition. He must nominate someone who will mollify the judicial conservatives, but he cannot nominate someone who will scare off the weak sisters in the Seven Dwarfs. He owes us that much.

But we also owe a duty to the president. If any one group tries to completely take over, it will shatter the coalition, and we may well see Chairman Leahy in the Judiciary Committee... in which case, no appointment will move, not even to the Supreme Court. The power of the chairman to disrupt and delay confirmation hearings is almost absolute.

The Rebel Alliance must be satisfied with anybody reasonable. If Garza or Edith Jones is nominated, they cannot say "no, we demand Luttig!" And the Seven Dwarfs must not insist upon a "consensus" candidate who would be, in reality, impossible to find: nobody who is acceptable to Patrick Leahy (VT), Joe Biden (DE), Ted Kennedy (MA), Chuck Schumer (NY), and Dick Durbin (IL) is going to be acceptable to Orrin Hatch (UT), John Kyl (TX), Sam Brownback (KS), or Tom Coburn (OK). It's just not possible: they have such disparate worldviews that "never the twain shall meet."

Both sides of the recent rift -- the White House and the Rebel Alliance -- must reach across to the other. So long as Bush makes a serious effort to find someone with a track record of judicial conservatism, the Rebels should stand behind the president and his nominee and push to get him or her confirmed. Not only that, but I believe the rank and file Republicans need to be much more proactive in helping pass the president's agenda, even if they don't believe in each and every single plank: there is such a thing as compromise... if all the nativists refuse to support Bush because he won't round up all twelve million illegal immigrants and ship them back by parcel post, and all the fiscal conservatives refuse to support Bush because he didn't veto the Highway bill, and the religious Right turns their backs (or sits on their hands in 2006) because Bush hasn't brought prayer back into the schools, while the libertarian Republicans take a walk because he won't fund stem-cell research... well, "there was nobody left to speak out." Say hello to President Dean and a Democratic Congress.

And then none of these groups gets what they want -- though they may end up getting what they deserve.

Remember what Benjamin Franklin said: "We must all hang together, or assuredly we shall all hang separately." Franklin meant it literally, which, thank God, we no longer have to fear; but if you hang the Republican president out to dry, don't be surprised if you find that your own prospects wind up wilting on the same clothesline.

Hatched by Dafydd on this day, October 28, 2005, at the time of 3:02 AM

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» Reid Returns to Judicial Filibusters... Is the Gang All Here? from Big Lizards
Out of the night, when the full moon is bright... is that Zorro riding up? Nope; it's the aptly named Sen. Minority Leader Harry Reid (D-Caesar's Palace), popping up like Whack-a-Mole to issue a promise to filibuster 4th-Circuit nominee Judge... [Read More]

Tracked on May 3, 2006 2:39 PM

Comments

The following hissed in response by: Texas Jack

Well said. My prime worry is that too many of us who support the President will stay home for an election or two, in disgust. Truly the radical right has shot the Republican party, and itself, in the foot. I hope we can recover in time.

The above hissed in response by: Texas Jack at October 28, 2005 7:32 AM

The following hissed in response by: RBMN

It was educational for me. I found out that not that many conservatives really believe in political redemption--in rewarding the prodigal son (or daughter in this case) for coming home. If you were liberal in 1993, but changed and support conservatism now, well, we just don't trust you, and we certainly don't trust you to stay conservative for the next twenty years on the Supreme Court. We don't even want to hear you make your case. That's how much we don't trust you. I imagine it's confusing for new Republicans, new conservatives, who never really felt burned by Justices O'Connor, Kennedy, and Souter, simply because they weren't paying attention to politics then, or were Democrats then, when those "turncoats" were nominated by a Republican Presidents and confirmed by the Senate.

The above hissed in response by: RBMN at October 28, 2005 7:36 AM

The following hissed in response by: Patterico

"So long as Bush makes a serious effort to find someone with a track record of judicial conservatism, the Rebels should stand behind the president and his nominee and push to get him or her confirmed."

Absolutely. What you should understand is that we were already prepared to do that, before Miers's nomination was announced. There are plenty of people who would not be my first pick, or even my second or third -- but whom I would get behind and support with all my abilities.

Harriet Miers was not one of those people, and Alberto Gonzales wouldn't work for me either. (Of course, the President is not going to pick Alberto Gonzales *now*.) But most of the other names you've heard floating around would fit the bill quite nicely.

The above hissed in response by: Patterico at October 28, 2005 8:50 AM

The following hissed in response by: Dafydd ab Hugh

Patterico:

It goes beyond just supporting the nominee. Wayward Republicans who have spent the last year, since the election, grousing about this or that policy -- while downplaying the fact that they support 90% of the president's agenda -- need to refocus on where we agree, not where we differ. Republicans win when they rally together behind a unified agenda of core mainstream virtues.

When each pulls in his own separate direction, stressing only where he disagrees with the president, then we crash and burn -- because the Democrats own the patent on the single-issue-voter game, and we just cannot compete with them and never will. Think "Contract With America."

We got a gift from Patrick Fitzgerald today (even despite his first name)... let's not let it drop to the floor in the midst of a squabble.

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 28, 2005 12:49 PM

The following hissed in response by: beebop

I still think you have the "damage was done" shoe on the wrong foot - it was not those wascally conservatives that betrayed their promise, it was GWB playing Lucy to our Charlie Brown, snatching the football away at the last minute one more time. Face it, our major objection to Miers was not the (very real) possibility she would drift back to the left, it was that, at best, she would be the Republican Janet Reno.

I'd like to take this opportunity to address some of your remarks about the seven dwarfs. I think the Gang of 14 deal was a mistake, but I don't think we have given McCain, Warner, Graham or DeWine the benefit of the doubt. If the nuclear option had been used for JRB, Owens and Prior, the MSM would have crucified the "illegitimate" right-wing courts for the next 20 years. Now if we pull the trigger after Ben Nelson et al backtrack on their promise not to filibuster, the Republicans can say they went the extra mile to accomodate the Dems but Ralph Neas was just too extreme to be satisfied. What I'm trying to say is that I think the Gang of 14 deal was not (at least not intentionally) a thumb in the eye of Bush or conservatives -- I think it was primarily a figleaf for Red State Dems to quit taking marching orders from the outside groups. Either way, I think we are going to see the nuclear option in the near future anyway, so lets see how it plays out.

The above hissed in response by: beebop at October 28, 2005 2:45 PM

The following hissed in response by: Dafydd ab Hugh

Beebop:

I still think you have the "damage was done" shoe on the wrong foot - it was not those wascally conservatives that betrayed their promise, it was GWB playing Lucy to our Charlie Brown, snatching the football away at the last minute one more time.

Look a second time at this post, Beebop: tell me... to whom did I assign blame for the damage?

(Cue the Final Jeopardy theme music.)

I very deliberately did not assign blame to either side on the forcing out of Miers. I left it up to each person to decide whether blame fell on Bush for making an unsustainable appointment in the first place, on the Rebel Alliance for making it into a crusade, or both or neither. It's time to move on -- er, you know what I mean! -- from the blame game to recovery discovery.

Snatching the football away "one more time?" Come on, Beebop, think back to the day before you heard it was Miers. At that point, with all of Bush's judicial appointments up through and including John Roberts, but not including Harriet Miers, would you really have said he had repeatedly snatched away the football? Who didn't he appoint that he should have? Who did he that he shouldn't have? And who did he abandon?

I can't think of any significant missteps in judicial appointments -- those lifetime tenure jobs that we rightly take so seriously -- prior to Miers. Can you?

Give credit where it's due. Think back to what you've liked about Bush's judicial appointments, not to mention his policies, compared to the last person to work out of that same office.

Don't keep looking back; you don't want to become a pillar of salt. It's time to look forward, eh?

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 28, 2005 3:00 PM

The following hissed in response by: beebop

I agree with you 100% - it's time to move forward with a reinvigorated base. That's why I have never accepted the premise that rejecting Miers would cause any long term damage. As far as the football being snatched away - I was referring to the past 30 years, not Bush.

The above hissed in response by: beebop at October 28, 2005 4:28 PM

The following hissed in response by: Patterico

"What with Leahy and Fitzgerald, I have decided that from now on, I will be instantly suspicious of anybody named Patrick."

Very funny.

The above hissed in response by: Patterico at October 28, 2005 11:38 PM

The following hissed in response by: Dafydd ab Hugh

Patterico:

Well, there was also Patrick Steubens.

Dafydd

The above hissed in response by: Dafydd ab Hugh at October 29, 2005 1:59 AM

The following hissed in response by: matoko kusanagi

Dafydd:

while the libertarian Republicans take a walk because he won't fund stem-cell research...

lol, too late, First's stem cell funding bill will pass in january, i expect. get current, dude. ;)
Miers stepping down was a good thing, the system works!! again, what were the founding fathers most afraid of? demogogues.
you watch, we'll fund stem cell research because it is the right thing to do. jettisoning Miers was the right thing to do. BCDNWS is just as dangerous as BDS.
i'm just NOT READY to whore my principles because it might hurt the party--thass what the dems do.

The above hissed in response by: matoko kusanagi at October 29, 2005 1:14 PM