Category ►►► Judiciary

February 01, 2006

The Two-Edged Sword, Revisited

Hatched by Dafydd

Paul at Power Line disagrees with my earlier analysis, that the "Alito Rule" will not really take, because Republicans won't follow the Democrats' lead in trashing the system.

He notes that the Alito Rule is one of procedure, not substance, and that Republicans may be willing to match the Gainsayer Party on procedural issues... for the sake of consistency, if nothing else:

As I tried to explain in my post asserting an "Alito rule," the criteria for voting on judicial nominees has a procedural element to it, at least in the sense that it's more important to have a consistently applied rule than to have any particular rule. I think Republican politicians will grasp this. If not, for what it's worth, conservative bloggers will be there to enlighten them. [Emphasis added]

I'm a little skeptical, since to most folks, there is no difference between procedure and substance: voting to filibuster a vote on a judge is the same as voting against that judge, I suspect, in the minds of the average voter; to most folks, the distinction is lawyer-talk.

Thus, if Republican voters are angry at the Democrats for "voting against" a qualified judge, they might well be equally angry at the Republicans for doing the same thing. We skate across thin ice when we neglect the appeal of basic fairness to the American voter... it's one of our core national principles.

But at a deeper level, I'm torn: I don't know whether I hope that Paul is right, because that would help the GOP cause of getting more judicial conservatives on the courts... or hope that Paul is wrong, since I think it's just plain wrong for a minority to filibuster a majority-supported nominee, whether to the bench or a cabinet or other administrative position.

Do we hope for democracy to prevail, whatever the cost? Fiat justicia ruat coelum? Or do we hope for an undemocratic response to preserve future democracy? Paul Mirengoff has, quite deliberately, I am sure, set us a variant on the greatest dilemma in ethics: dare we tolerate the intolerant?

I don't know the answer to that question (though I do know how to integrate some transcendental functions). This is dangerous stuff.

Hatched by Dafydd on this day, February 01, 2006, at the time of 10:26 PM | Comments (2) | TrackBack

January 31, 2006

The Two-Edged Sword

Hatched by Dafydd

In another rare disagreement with one of my favorite bloggers at my favorite blog, Power Line -- Paul this time, not John -- I have to take exception to what Paul calls the "Alito rule":

This was basically a straight party line vote -- 90 percent of the Democrats voted no. The vote changes the "rules" for confirming Supreme Court Justices. Under the Alito rule, Senators will vote against highly qualified nominee for no reason other than that they expect the nominee to rule contrary to their preference on major issues. Under the Alito rule, the president's party, in effect, must control the Senate in order for the president to have top-notch nominees of his choice confirmed. When the the president's party doesn't control the Senate, only compromise nominees acceptable to both parties can expect to be confirmed.

Typically, I find Paul more equivocal than I; but this time, our roles are reverse: I think Paul draws too sweeping a conclusion.

In fact, I believe that the Alito Rule -- party-line vote for Supreme-Court nominees in the Senate -- will apply in the future only when the president is a Republican. When a Democrat is in the White House and nominates a controversial but highly regarded leftist to the Court, the Republicans will be unable or unwilling to use the "Alito Rule" against him: they will vote for the nominee the same way they voted for Ginsburg and Breyer.

Republicans have proven over and over that on certain issues, they will take the high road, following their own consciences, whatever that may entail, even when the position is a political loser; in fact, even when it's political party suicide. Look at Sen. Arlen Specter calling for hearings into the NSA al-Qaeda-tapping program, or to conservative Republicans who vote against the president's position on any number of issues, from drilling in ANWR to reforming Social Security to banning partial-birth abortion.

Notwithstanding the foul, revolting Democratic revolt against Samuel Alito, in which they finally stooped all the way down to personal vilification and out and out slander -- if there were not an exception carved out for speeches on the floor of Congress, a number of Democratic senators would find themselves in civil court -- I see no evidence that Republicans plan on following suit the next time a Democratic president nominates another Ginsburg. Rather, they will complain bitterly, recall the Alito mini-fili and the near party-line vote, lecture the Democrats -- and then hold their noses and once again vote for the qualified but far-left nominee.

It's simply one element of the Culture of Clarity that permeates the Republican Party. And the Democrats know it... they would never dare push the envelope as they do if they thought the GOP would respond in kind.

Hatched by Dafydd on this day, January 31, 2006, at the time of 03:25 PM | Comments (6) | TrackBack

January 26, 2006

Filibuster Count: Two to Go

Hatched by Dafydd

With today's pro-Alito declarations by Democratic Senators Tim Johnson (somewhat expected, given that Bush carried South Dakota by more than twenty-one points) and West Virginia's Robert Byrd, of all people, brings the total number of Democrats declaring they will vote for Samuel Alito, including Nebraska's Ben Nelson, to three.

One presumes that a senator willing to vote for Alito will likewise refuse to filibuster against him.

Thus, there are a minimum of three Democratic votes against filibustering Alito. While it's possible that some Republicans will vote against him -- keep an eye on the usual suspects -- I doubt any will go along with a filibuster. Thus, we need only consider Democratic votes for such a procedural brick wall.

There are 45 Democrats, counting Jumpin' Jim Jeffords (I-VT) as one of them (since that is the party with which he caucuses). They need 41 votes to sustain a filibuster, not taking the constitutional option into account. Thus, at the moment, the best they can get -- if every other Democrat cooperates -- is 42.

So if just two more Democrats declare support for Alito, it will, for all practical purposes, be impossible to filibuster Alito's confirmation vote... and that will likely open the floodgates. If the party crosses that threshold during debates, then all or nearly all will vote for cloture. In the actual vote, Alito will probably get about 60 senators voting for him.

But if no other Democrat declares between now and the vote, there might be a serious attempt to mount a filibuster -- not because they think they'll win, but rather to keep sucking up to the radical Left that increasingly controls the Democratic Party. We'll see an attempted filibuster that is broken (either by peeling off a couple of Democrats during the actual cloture vote or via the constitutional option immediately afterward), and Alito might end up with no more than 51 or 52 senators, claiming (or tying) the dubious title of narrowest Supreme Court confirmation ever (currently held by Clarence Thomas at 52-48).

So which hand will they choose? Will the Dems pull back from the brink? Or will they, like buffalo stampeded by "environmentally friendly" American Indians, charge blindly off the cliff, snorting and bellowing all the way down?

"Pretty," as Byrd might say; "pretty, pretty, pretty, pretty, pretty!"

Hatched by Dafydd on this day, January 26, 2006, at the time of 03:00 PM | Comments (3) | TrackBack

January 10, 2006

The New York Times Needs to Read Power Line

Hatched by Dafydd

The New York Times today reports that the interrogation of Judge Samuel Alito today focused on a formerly obscure concurrance by a Supreme Court justice in 1952... in a case that has already been thoroughly analyzed, in far greater depth, by the tribunes at Power Line.

(Haven't we been down this road before? It's like déjà vu all over again!)

The case they refer to is Youngstown Sheet and Tube Company v. Sawyer 343 U.S. 579 (1952), and Paul Mirengoff at Power Line first discussed it back in late December, anent the NSA intercept program that has just been outed by anonymous "officials." Paul only laid out the basics of the particular concurrance by Justice Robert H. Jackson that is now, more than two weeks later, the "focus of [the] hearings" into Alito's nomination to the Supreme Court.

On New Year's Day, John Hinderaker took a whack at the Jackson formulation in a much longer piece.

The basics of the case -- and why lefties think it applies to President Bush and the NSA intercepts -- are quickly recounted in the Times piece:

The 1952 opinion, a concurrence by Justice Robert H. Jackson, rejected President Harry S. Truman's assertion that he had the constitutional power to seize the nation's steel mills to aid the war effort in Korea. Whether and how Justice Jackson's analysis should apply to broadly similar recent assertions by the Bush administration, notably concerning its domestic surveillance program, will plainly be a central theme when questioning of Judge Alito begins Tuesday morning....

In 1952, the Supreme Court faced a set of clashing interests in the Youngstown case broadly similar to those in the current surveillance controversy. That April, President Truman seized the nation's steel mills to prevent an expected labor strike, saying that national security during the Korean War required uninterrupted access to steel.

In June 1952, in a 6-to-3 decision, the Supreme Court rejected the various legal rationales offered by the Truman administration for the seizures. Many of those rationales have echoes in the justifications offered by the Bush administration for its detention of enemy combatants, harsh interrogations and domestic surveillance without court approval.

"Echoes in the justifications..." wait, what did the Court actually decide in the Youngstown case?

Writing for the court, Justice Hugo L. Black said the president's power was extensive but not unlimited.

"Even though 'theater of war' be an expanding concept," Justice Black wrote, "we cannot with faithfulness to our constitutional system hold that the commander in chief of the armed forces has the ultimate power as such to take possession of private property in order to keep labor disputes from stopping production. This is a job for the nation's lawmakers, not for its military authorities."

Ah, of course: seizing private property to prevent a strike. Yes, I can see how that's "broadly similar" to the National Security Agency intercepting phone calls from al-Qaeda to their agents in the United States. And I can definitely hear those "echoes in the justifications" offered by President Bush why he should be able to hold enemy combatants in military detention.

To its credit, the Times does admit that the "broadly similar" facts seem oddly dissimilar:

There are, of course, obvious differences between the Youngstown case and recent efforts to combat terrorism. The seizure of the steel mills, for instance, was a wholly domestic matter. The surveillance program, by contrast, monitors international communications between the United States and other nations.

Um, yeah. Also, Truman tried to seize the steel mills in order to prevent a strike that he thought might interfere with the war -- whereas the NSA intercepts are direct warmaking actions to gather enemy intelligence: as Hinderaker said earlier (more or less paraphrasing the president), "If al Qaeda is calling you, we want to know why."

Justice Jackson's concurring opinion set up a formulation for the strength of a president's power:

1. When the President acts pursuant to an express or implied authorization of Congress, his authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate....
2. When the President acts in absence of either a congressional grant or denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress may have concurrent authority, or in which its distribution is uncertain....

3. When the President takes measures incompatible with the expressed or implied will of Congress, his power is at its lowest ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter.

(The Left claims, of course, that the Foreign Intelligence Surveillance Act (FISA) forbids any "wiretapping" without a warrant -- but see below -- and that therefore, the president's power is Type III: "incompatible with the expressed or implied will of Congress," thus "at its lowest ebb.")

"It is not entirely clear why Justice Jackson's concurrence has had such a lasting impact," disingenuously muses the Times; for it is completely obvious why: because that concurring opinion is all that the Democrats have to throw against the commander in chief's obvious Article II power to fight wars. Therefore, they're going to keep waving it as a bloody shirt to urge on the masses.

Returning to Hinderaker's post on Justice Jackson's concurring opinion and its possible application to the NSA case, John begins his analysis so:

In my opinion, reliance on this analysis by critics of the NSA programs is misplaced, for several reasons.

The reasons he cites are quite persuasive:

It was a concurring opinion that no other justice joined.

The decision in Youngstown was a no-brainer: "if a President's constitutional powers allowed him to formulate and carry out domestic policy, including the seizure of private property, by executive order, then the President really would be a dictator," sayeth Brother John.

The argument turned more on the president's charge to "take Care that the Laws be faithfully executed" than his powers as commander in chief.

It isn't clear that Jackson's discussion and his three-scenario formulation were ever meant to apply to the president's war-fighting powers: "Jackson lays out his three categories before he specifically addresses any of the executive's Article II powers, then begins by talking about the President's exercise of 'the executive Power.'"

The Court rejected the claim that Truman's powers as commander in chief allowed him to seize the steel mills on the grounds that that was a purely domestic action -- but the NSA intercepts are of foreign-originating calls and e-mails.

Even Justice Jackson himself appears to agree with Hinderaker on that last point. As John quotes from Jackson's opinion...

(Note: for reasons known only to themselves and perhaps God, the fine fellows at Power Line have taken to using three asterisks [ *** ] instead of the normal ellipsis [ ... ] to indicate words clipped out. They don't mean such passages are attended by three footnotes!)

There are indications that the Constitution did not contemplate that the title Commander in Chief of the Army and Navy will constitute him also Commander in Chief of the country, its industries and its inhabitants.***That military powers of the Commander in Chief were not to supersede representative government of internal affairs seems obvious from the Constitution and from elementary American history.***

We should not use this occasion to circumscribe, much less to contract, the lawful role of the President as Commander in Chief. I should indulge the widest latitude of interpretation to sustain his exclusive function to command the instruments of national force, at least when turned against the outside world for the security of our society. But, when it is turned inward, not because of rebellion but because of a lawful economic struggle between industry and labor, it should have no such indulgence.

Finally, one last comment. The Times article concludes with a backhanded legal opinion on FISA that appears, facially, to be utterly false:

The third category is where the president takes action at odds with the will of Congress. A 1978 law, the Foreign Intelligence Surveillance Act, appears to require court approval before monitoring of the sort the administration has acknowledged.

In fact, it says no such thing, as John pointed out in yet another Power Line post (I feel so inadequate):

UPDATE: If the program is as the President described it, and the interceptions are carried out overseas, then it is outside the scope of FISA. See the definition of "electronic surveillance" to which that statute applies, 50 U.S.C. Sec. 1801(f):

John then lists the four-part definition of "electronic surveillance," as used by FISA, no part of which appears to apply to the NSA intercepts, assuming we have been given correct information by the White House. The "electronic surveillance" that has been "acknowledged" by the Bush administration does not, thus, "require court approval" or warrant of any kind.

So the entire New York Times take on the NSA intercepts is wrong on its face, and needn't even reach the question of whether an act of Congress (such as FISA) can override the president's residual, plenary powers as defined in Article II of the Constitution.

'Nuff said.

Hatched by Dafydd on this day, January 10, 2006, at the time of 05:43 PM | Comments (1) | TrackBack

November 01, 2005

Alito Lit. 101

Hatched by Dafydd

There are two main cases tried by Supreme Court nominee Judge Samuel Alito that will whip all the Democrats into a froth of hysteria. First, Patterico has a great analysis of Planned Parenthood v. Casey, Alito's dissent from a ruling that reaffirmed but rewrote Roe v. Wade.

Second, John at Power Line does the same for another major case that has gotten a lot of attention: Alito's dissent from a decision that rejected dismissal of a lawsuit against police officers for "strip searching" (by a female cop, of course) a mother and her ten year old daughter who were found in a methamphetamine den (Patterico adds his own two centavos worth, disagreeing with John Hinderaker about Alito's dissent but agreeing that there was nothing terrible or even untoward about it).

These will likely be the two lines of attack by leftists against Judge Alito; we should read up on them to gird ourselves for battle.

Hatched by Dafydd on this day, November 01, 2005, at the time of 03:26 AM | Comments (4) | TrackBack

October 31, 2005

Judge Alito -- Breaking News!

Hatched by Dafydd

According to Hugh Hewitt, Charles Schumer is "slowing" the nomination of Judge Samuel Alito to the Supreme Court; I haven't yet seen this in print, but he did say that "it is a question" whether Alito would "reverse much of what Rosa Parks and so many others fought so long and so hard to put into place," as reported by Hugh. (I just heard the audio clip of Schumer using this phrase, so it's not just Hugh's word.)

Hugh had the same idea as I on the point of the delay: it's not out of any idea that Schumer and the other rejectionists could gather enough support to stop Alito's confirmation; rather, they hope to delay his confirmation long enough that Sandra Day O'Connor, not Samuel Alito, will decide the two abortion cases that will be argued in November.

But Hugh also reports that Lindsay Graham (R-SC) has as much as signalled that he will not support a filibuster against Judge Alito, and that he will support the "constitutional option" if the Democrats try. And just now, I heard with my own ears (not someone else's ears) Senator Mike DeWine (R-OH) explicitly say that he sees nothing in the way of "extraordinary circumstances" in the Alito nomination and that DeWine too would support the constitutional option if the Democrats filibuster.

That means two members of the Gang of Fourteen (specifically, the Seven Dwarfs contingent) have now come out in favor of the constitutional option -- banning judicial filibusters altogether -- if the Democrats filibuster Alito, as Patterico long-ago predicted the Democrats would for anybody that Bush nominated to his second Supreme Court opening.

Assuming that neither Arlen Specter (R-PA) nor Chuck Hagel (R-NE) would refuse to pull the trigger on that option, that means that the Democrats can get no more than five Republicans to vote against it... and that is not enough; with Dick Cheney's tie-breaking vote, the rules change would in fact pass. (Assuming, that is, that no Republican is unable to make the vote due to illness.) Though I'm also a bit concerned about Chuch Grassley (R-IA),

Speaking of Patterico, he also discusses this question.

I am convinced that Specter, in his present capacity as chairman of the Judiciary Committee, could not reasonably vote against the constitutional option in the context of a Democratic filibuster against Alito. So we need to get one more Squish on record out of the following group: John McCain (R-AZ), Chuck Hagel, Lincoln Chafee (R-RI), Susan Collins (R-ME), Olympia Snowe (R-ME), and John Warner (R-VA). I suspect Hagel, McCain, and Warner will make it clear before the hearings that they see no "extraordinary circumstances" in the Alito nomination.

It's looking good. The only question is whether the Democrats go ahead and force a filibuster, thus allowing the Senate to ban such tactics, or whether they read the tea leaves and drop the idea, just to keep that possiblity open for the future. (But who would they be waiting for, other than Samuel Alito? Is there anyone reasonably imaginable that Bush could nominate who would be worse for the Democrats than Alito?)

Hatched by Dafydd on this day, October 31, 2005, at the time of 03:57 PM | Comments (4) | TrackBack

AP Sez Alito! -- and It's Now Official

Hatched by Dafydd

AP says that President Bush has selected Judge Samuel Alito to replace retiring Justice Sandra Day O'Connor on the Supreme Court. And President Bush is currently announcing Judge Alito's nomination even as I type these words.

Here is Alito's c.v. from the Federal Judicial Center:

Born 1950 in Trenton, NJ

Federal Judicial Service:
U. S. Court of Appeals for the Third Circuit
Nominated by George H.W. Bush on February 20, 1990, to a seat vacated by John Joseph Gibbons; Confirmed by the Senate on April 27, 1990, and received commission on April 30, 1990.

Education:
Princeton University, A.B., 1972

Yale Law School, J.D., 1975

Professional Career:
Law clerk, Hon. Leonard I. Garth, U.S. Court of Appeals, Third Circuit, 1976-1977
Assistant U.S. attorney, District of New Jersey, 1977-1981
Assistant to the U.S. solicitor general, U.S. Department of Justice, Washington, DC, 1981-1985
Deputy assistant U.S. attorney general, U.S. Department of Justice, Washington, DC, 1985-1987
U.S. Attorney for the District of New Jersey, 1987-1990

Race or Ethnicity: White

Gender: Male

(To find this, go here and type alito,samuel in the text box, and press Enter; click on the link that appears.)

I would love to see Patterico scramble to explain this post! Relevant quote:

If you believe this commenter at Confirm Them, Alito is out because Arlen Specter doesn’t like him. [Please see both updates to this post.]

Good Lord. Does Bush want Specter’s blessing or that of his base? Because they’re not the same thing.

Has he learned nothing from the Miers debacle?

Heh... we went from "if you believe" to "has he learned nothing -- ?" in just five sentences!

Patterico reminds me of Mark Twain's story about a cat who sat on a hot stove. It was such a painful lesson that he never sat on a hot stove again.

Trouble was, he never again sat on a cold stove, either!

Hatched by Dafydd on this day, October 31, 2005, at the time of 04:24 AM | Comments (3) | TrackBack

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 03:02 AM | Comments (10) | TrackBack

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 07:23 AM | Comments (16) | TrackBack

October 26, 2005

Waiting for Anita

Hatched by Dafydd

Wo will step forward to be the conservative "Anita Hill?"

Fourteen years ago, a specter was haunting Liberal-land... the specter of Clarence Thomas. A conservative black man was nominated to the Supreme Court, and this was anathema to the plantation politics of the Left.

Worse, they could not bork him the way they had borked Bork: he made manifestly absurd claims -- for example, that he had never thought about Roe v. Wade or discussed it with anyone -- but nobody forthcame to credibly dispute him. The liberals, led by Howard Metzenbaum (D-OH), had thrown every negative thing they could find at Thomas, "cherry"-picking the worst statements they could wrench out of context and hit him over the head with, but he had survived, albeit with a split 7-7 vote out of the Judiciary Committee. It was clear that notwithstanding the Democratic majority, the full Senate was going to confirm him. The Democrats were faced with a crisis: something had to be done, and fast.

As David Brock ably demonstrated in the Real Anita Hill -- before he went mad -- frantic liberals recruited a young lawyer who had worked for Thomas, Anita Hill, to make a false charge of sexual harassment. Realizing the flimsiness and absurdity of the charge, they first tried to get Thomas to withdraw; failing that, they tried to float the charge anonymously, hoping to derail Thomas's approval without ever having to reveal the weakness of their hand.

When he refused to withdraw, his nomination was wrenched back to the J-Com for hearings, chaired by Sen. Joseph Biden (D-DE). Senators, including some Democrats, refused to reject him on secret "evidence" without giving him a chance to rebut. At that point, having no alternative, the "shadow Senate" -- a gaggle of left-liberal luminaries and interest groups, including Nan Aron (Alliance for Justice), Kate Michelman (NARAL), Ralph Neas (Leadership Conference on Civil Rights), Judith Lichtman (Women's Legal Defense Fund), Molly Yard and Eleanor Smeal (NOW), Art Kropp and Melanne Verveer (People for the American Way), Benjamin Hooks (NAACP), and Nina Totenberg (NPR) -- and Hill's friend "Judge" Susan Hoerchner prevailed upon Hill to go public.

Hill seemed frightened when called to testify... as well she might be. She was followed by a parade of witnesses that refuted virtually every particular of her claims except those for which there were no witnesses but Hill and Thomas. In the end, the vicious slander melted away in the harsh light of cross examination (mostly by Sen. Orrin Hatch, R-UT). The enemies of Thomas could not keep him off the Court, but the could damage him: the final Senate vote was a bare 52 to 48, the closest judicial confirmation vote of the twentieth century.

Flash forward to today. Today we have another nominee to the Supreme Court, Harriet Miers -- and a different "shadow Senate" equally desperate to stop her... but this time made up of "judicially conservative" pundits, writers, and bloggers, dubbed the Rebel Alliance in Captain Ed's nomenclature. As in the case above, they have thrown everything they could find at her, seizing upon every carefully elided innuendo and artfully worded smear, whether from the Washington Post, the New York Times, or even Sen. Charles Schumer (D-NY) and Sen. Patrick Leahy (D-VT), opiners that on any other issue, these conservative Rebels would utterly scorn. And as with the Thomas case, despite misgivings, no Republican senator has publicly said he will vote against Miers or even that he is leaning that way.

Curiously, and unlike the previous case, the Rebels seem very concerned that Miers be forced out before she even has her confirmation hearings. David Frum just argued on Hugh Hewitt's show that he believes that if she goes to hearings, it will become "obvious" that she is unfit to serve on the Court... in which case, one wonders, why not wait for just that to eventuate? It's hard not to conclude that they're less worried about her doing badly than about her doing much better than expected. Hence they want to force her out beforehand, without giving her a forum to respond. This, then, is precisely analogous to the first moves to force Thomas out without allowing him to confront his accuser.

This is likely to fail; the president is not going to withdraw Miers prior to her hearings. So the next question is whether Republican senators will turn on her. They may; I expect the top Rebels will be funneling bork-worthy smears to senators they hope will be predisposed to reject her. But President Bush may well prevail, and we may be facing a looming J-Com vote where it is clear that Miers has the votes to be recommended, as well as the votes on the floor to confirm.

Now....

That is the moment I await: I want to know... who will be the conservative "Anita Hill" to step forward with some explosive, un-disprovable charge? What form will the charge take? Will the accuser attempt to make the charge anonymously? And will the majority Republicans prove as just as a handful of the majority Democrats did in 1991, voting for Thomas when they could have simply borked him?

I worry about the Rebel Alliance. They have worked themselves into such a frenzy, that it would not be beyond belief were they to decide that stopping Harriet Miers was so important, it justified any means necessary to do so. A new "Anita Hill" is not beyond my imagination.

I hope it doesn't happen; I hope the Rebels rebel against the inevitable suggestion, refusing to sink to the level of the "shadow Senate" of 1991. I like these people; I'm friends with several of them, and I hate having to worry just how far they're willing to go.

But I'm just not sure; and that is what saddens me most.

Hatched by Dafydd on this day, October 26, 2005, at the time of 05:03 PM | Comments (35) | TrackBack

October 24, 2005

I Support the Miers Nomination

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All right, I suppose I don't mind joining the bear's newest blog survey. Here you go:

I support the Miers nomination.

...With caveats and pending her performance in the hearing. Actually, the real reason I'm participating is that I'm vey curious to see whether her confirmation hearing changes any minds -- and in which direction! I hope NZBear has the wisdom to rerun his scavenger-bot after the hearing is over and see how things have shifted, one way or another. If at all.

So here's my vote, and we'll see what happens.

(Note, this post took six minutes from soup to baklava... but that doesn't quite break my speed record for putting up a post!)

Hatched by Dafydd on this day, October 24, 2005, at the time of 04:24 PM | Comments (8) | TrackBack

October 23, 2005

George Will: the Old Maid in the Popcorn Bag

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Those of us who support the nomination of Harriet Miers (even reluctantly) were warned repeatedly that we would be devastated, blown away, and inundated by the Noahide deluge of Hurricane Gamma, George Will's unanswerable final whirlwind of rhetorical devastation of Harriet Miers. Instead, all we got was a spritz of seltzer down our pants.

Will's meticulous retailing of yawn-inducing epithets ("perfect perversity," "discredits," "degrades," "justifications," "deficit of constitutional understanding," "gross misunderstanding of conservatism," and "persons masquerading as its defenders" -- all from the first paragraph!); his hand-waving dismissal of counterargument (his entire final paragraph -- see below); the by now comical snobbery ("crude people"), looking down a sharpened beak at the ants crawling about his Ozymandian feet; all this does surely leave me breathless... but with an amazed sense of loss, not cowed submission.

Lately, Christopher Hitchens has turned into the most articulate defender of the global war on terrorism in the administration. Well actually, outside the administration; but he may as well be a presidential spokesman. Hitchens' denunciations of the Left's politics of bending over coupled with their moist invective of personal destruction -- which now takes the place of any attempt at rational debate of the war, its history, purpose, and effect -- has made him, much to his discomfort, the Cassandra of the death of Socialism as a serious force in world affairs: he sees where his beloved Left is headed and what is going to happen, but he cannot get them to beware of Moslems bearing rifts. No more eloquent spokesman for the conservative virtues of liberal western democracy now exists than Chris Hitchens, which must drive the poor man mad.

Did space aliens sneak down and switch the souls of the two polemicists, Will and Hitchens?

I rummaged through George Will's column looking for the big pop; instead, I'm holding just an old maid in my hand: the kernel is barely cracked, just enough to release its meagre store of steam, not enough to burst open and rattle the pot with its noise. The cherry bomb that fizzled. One of my mother's sneezes, where she gasps for air, teary eyes as wide as millstones; she flaps her arms and turns fire-engine red -- then nothing more than the squeak of a deferential churchmouse.

Oh, I cannot stand it. Let's jump right into some of Will's incisive invective.

Such is the perfect perversity of the nomination of Harriet Miers, it discredits, and even degrades, all who toil at justifying it.... Other arguments betray a gross misunderstanding of conservatism on the part of persons masquerading as its defenders.

Miers' advocates, sensing the poverty of other possibilities, began by cynically calling her critics sexist snobs who disdain women with less than Ivy League degrees.

Practically the first words out of Will's pen betray the very quality of discrimination that has served him so admirably for so long... until now, in his dotage. Which "Miers' advocates" would those be? Anyone in particular? In this case, a careful study of the record reveals that these advocates consist of Ed Gillespie -- assuming one is willing to look at a cap gun and call it a Howitzer. Will bravely shoulders that duty: so Gillespie said (according to Will) not only that "her critics" (all of them?) were "sexist" but that they were "snobs" as well.

Did Gillespie say "snobs?" Did anyone? I'm certain someone must have... and in the new world of Will's rhetorical cannonade, that is enough; what was said by one was said by all.

No longer can Will discriminate between one charge (sexism) and another (snobbery), or even between one man and another. Would collectivism be one of those new understandings of conservatism of which Will rises in defense? Alas, in George Will's case, this may not represent degeneracy: a man who calls himself a "Tory" can hardly claim the mantle of Ronald Reagan, or any other American conservative, can he? He rises and falls with the collectivist nature of Europeanism, where even parties on the right see people only as ordinals, never cardinals.

The sharpest piece of recent political dissection I have read is William F. Buckley, jr.'s "In Search of Anti-Semitism," the lengthy essay that underpinned the all-antisemitism issue of the National Review. In the essay, Buckley managed to disciminate between Joe Sobran, whose anti-Zionism, Buckley concluded, had metastasized into full-bore antisemitism -- and Patrick J. Buchanan, who Buckley absolved of that sin (at that time; revisiting, he might come to a different conclusion today). That is, Bill Buckley treated the two as individuals, not as representatives of some class of people.

The latter precisely describes Will's entire sloppy column; it is "Crown Heights" reasoning, named after the infamous New York pogrom: when a car in the motorcade of Rabbi Menachem Schneerson ran a red light in Crown Heights, New York City, striking and killing a seven year old black child named Gavin Cato, a mob of black residents, vowing retaliation, went and found the nearest Jews they could and assaulted them. Two men were murdered: Yankel Rosenbaum, for being Jewish -- and Anthony Graziosi, for looking Jewish. It mattered not to the rioters who actually drove the car or whether the collision was intentional; one Jew (or bearded man in black) was the same as any other, and intentions are always irrelevant in tribalist warfare.

Thus, if Ed Gillespie says something that can be interpreted as tarring all critics, including conservative ones, with the brush of sexism or elitism, it is right and proper to today's George F. Will to lash out in retaliation against all "advocates" of Miss Miers' nomination (that is, advocates of waiting to hear what the woman has to say in the hearings). We are all "degrade[d]," we are all guilty of Gillespie's sin, all including Hugh Hewitt and Bill Dyer and Dafydd ab Hugh -- regardless whether Gillespie even meant what Will inferred; intentions are irrelevant to Will.

(But not to Amy Ridenour. Displaying a willingness to listen that eludes Prince George, she writes:

(I just received a gracious phone call -- especially considering what I have been writing -- from Ed Gillespie. He made a compelling case that he was not referring to conservatives when he referred to some critics of the Harriet Miers nomination with the terms "sexism" and "elitism," but to others who said things that, when he described them, did sound rather sexist and elitist.... I believe him when he says he didn't means us with those words.)

Worse, Will's simplistic denunciation does not even understand the charge -- of which he, more than anyone, is truly guilty. The "elitism" or "snobbery" charge is not that the Rebel Alliance looks down upon Miers because she graduated from Southern Methodist University; the charge is that her critics insist that only a person who is a particular kind of professional legal intellectual qualifies for the Supreme Court. Those who make that argument are fond of analogizing the Court to brain surgery; Charles Krauthammer (another snob) japed on Brit Hume Friday, if you needed brain surgery, would you go to a podiatrist? But the Court was never intended to be the supreme legal university; if judicial conservatives are to be believed, the primary purpose of the Supreme Court is to adjudicate disputes, not churn out postdoctoral dissertations on arcane and occult points of constitutional doctrine.

But I must not spend forever on a couple of sentences (though I could). Here is Will's refined elucidation of Miers advocates as know-nothings:

In their unseemly eagerness to assure Miers' conservative detractors that she will reach the ``right'' results, her advocates betray complete incomprehension of this: Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path the Supreme Court takes to the result often is the result.

By contrast, Miers' advocates (all of them) must understand none of this; I'm sure Will's clarification comes as an eye-opener to Hugh Hewitt, for example. In an earlier piece, Will was more explicit:

[President Bush] has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

This is the high-verbal lynching carried to the point of low comedy.

Of course a judge must understand the Constitution; but caselaw (common law) is equally important, including an understanding of contracts, torts, legislation (state and federal), and every other area of the law besides con-law that might pop up in a legal dispute. Nobody is an expert in all; every justice must rely on the writings of specialists (often previous judges that they quote at length... at great length).

But equally, every justice must look within himself to decide where he lands when the experts disagree -- which inevitably is always. Judicial philosophy is indeed important, as judicial conservatives and liberals alike argue; and contrary to Will's later snoot-cocking, I do not consider it "inappropriate" for senators to inquire into the nominee's opinions on past cases to determine her judicial thinking. But the "brain-surgery" analogy is infantile; it paints judging as merely a narrow technical skill, rather than a balancing act of competing verities that collide in the instance of a single set of facts.

Reducing the Court to a gaggle of lecturing professors is not only offensive, it's a blunder. Intellectuals, especially truly clever ones, can talk themselves into anything. There is good reason why so many of the brightest lights of the twentieth century talked themselves into joining the Party -- but Ronald Reagan never did. Room must be made on the Court for a person grounded in sanity and the real world, rather than airy theory and lugubrious rhetoric.

Harriet Miers may very well not be that person; I do not know her -- that is the best argument for the Rebel Alliance, that nobody really knows her but George W. Bush. But Will could drip the same sneer with equal indiscrimination onto anybody who fit the Ronald Reagan profile, not simply Miss Miers: if you are not an effete, egocentric, snide, condescending, etherial, arrogant, elite intellectual -- preferably, one who sports the ridiculous affectation of a bow tie -- then you need not apply for the position, in Will's determination.

His argument is sloppy, ugly, and self-important. But can we really expect more from a man who accepted the twin lures of lucre and the chance to strut and fret on a weekly basis in order to stay on at This Week? Will remained long after all the real journalists had left, throwing in his lot with the limp-brained, talentless, preening, no-count, wriggling, pencil-necked, geeky political hack George Snuffleupagus to carry the torch of David Brinkley forward into the twenty-first century.

This is Will's brave, new world, the tiny pond in which he chooses to shimmer. He holds court in Chevy Chase (not quite in but definitely of the Beltway) -- in the pages of the Washington Post -- on the set at ABC treating a former Clinton campaign operative as his journalistic equal (he is probably right) -- looking down his bespectacled nose at the lower classes, such as evangelical Christians (the "crude people" who resort to the "incense defense" of Harriet Miers) -- and whose favorite political figures are all from Europe... yet he has the chutzpah to pontificate to the rest of us about the nature of conservatism. Will, who never attended law school, lectures us on the duties of those who would interpret the law. He is not a minister, but he incessantly enunciates the Gospel of St. George, in which the only mortal sin is to be "unseemly."

I am astonished that Will did not openly campaign for John Kerry, they are so much alike. Perhaps Will was put off by Kerry's overemphasis on athletics: except for baseball, which Will sees as "contemplative," a form of meditation, perhaps, he seems uncomfortable with exhibitions of manhood.

In the end -- the last paragraph -- Will anticipates that some conservatives (or in my case, anti-liberals) may have the bumptious presumption to disagree with his assessment. He prepares for that eventuality with the classically liberal best defense: the cerebral threat.

As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch's invaluable dignity [almost as good as seemliness]. Finally, any Republican senator who supinely acquiesces in President Bush's reckless abuse of presidential discretion -- or who does not recognize the Miers nomination as such -- can never be considered presidential material.

Well! Who could argue with that?

This column is a sad chapter in the long twilight denouement of George Will's career. I doubt the Rebel Alliance can see its errors; they have long since dropped into a form of tribalism themselves, in which any anti-Miers remark is embraced as a sacrament, even if it comes from Arlen Specter or Patrick Leahy (the new arbiters of conservative judicial competence). Doubtless, the Alliance will seize upon the Will piece to wave as they lurch through the streets, sharpened writing quills in hand, looking for some "Miers advocates" to stab (any will do). See how easy collectivist caracature can be?

And that, too, is sad.

Hatched by Dafydd on this day, October 23, 2005, at the time of 04:41 PM | Comments (38) | TrackBack

October 19, 2005

Summary of Judge Robert Bork's Hit Piece On Bush

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Apres moi, le deluge!

"Slouching Towards Miers," Robert H. Bork, Wall Street Journal, October 19th, 2005; hat tip Hugh Hewitt. (Registration required to view Bork piece, but not subscription, I believe.)

Hatched by Dafydd on this day, October 19, 2005, at the time of 07:38 AM | Comments (9) | TrackBack

October 17, 2005

What I Would Ask Strict Constructionists

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(Or whatever they choose to call themselves.)

Would it be unconstitutional for a state legislature to enact a law banning all vaccination within the state?

If one did, would any court at any level be allowed, under your judicial philosophy, to overturn such an insane act? Would Congress be constitutionally allowed to do so, under any element of the grant of rights in Article I, Section 8?

If your answer to either of these is Yes, doesn't that entail some level of judicial activism... in a good cause, of course? And if the answer is No and No, those kids just gotta die of polio, diptheria, and typoid fever... then doesn't the whole philosophy of governance fail the most basic test of preserving the citizenry's life, liberty, and pursuit of happiness?

I was inspired by Dennis Prager's remark at the KRLA Talkfest yesterday that "purists can ruin great movements." I believe that absolute blind purity of essence in even a movement such as originalism (by whatever name) is destructive of the very goals it was designed to foster.

Hatched by Dafydd on this day, October 17, 2005, at the time of 06:30 PM | Comments (15) | TrackBack

What I Would Ask Miers

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Here's a burning question that I would ask Supreme Court nominee Harriet Miers, were I a senator... not because I think she would be bad on this issue, but because the Court has been bad in the past:

Miss Miers; within your judicial philosophy, is there ever a valid situation in which foreign law or jurisprudence -- that has never been formally recognized by treaty with the U.S. -- can nevertheless trump the United States Constitution or American federal or state legislation in American courts?

All right, a lawyer would phrase it more bulletproof, but that's the gist. The Supreme Court -- in particular Justices Breyer and Kennedy, I think -- say Yes, lots of situations. I say No, never.

What does Miers say? For that matter, what does Roberts say?

Hatched by Dafydd on this day, October 17, 2005, at the time of 06:16 PM | Comments (1) | TrackBack

October 14, 2005

New Reason to Support Harriet Miers

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I have been pretty much supportive all along, based solely on the grounds that I think it would be bad for the party if she were slammed out of bounds before she even got a hearing. Then I became more strongly attracted to the notion that we really ought always to have at least one justice who isn't a former judge and isn't an "expert" on the Constitution: "convictions make convicts," as Timothy Leary used to say (I mean when he was alive), and experts who spend all their lives studying the writings of other experts in their subject tend to have a very subjective view indeed.

Bush believes Miers is Reaganesque in the sense of having an innate grasp of right and wrong in many circumstances, and I've seen nothing so far from her opponents that persuades me to the contrary. Examples of trivial mistakes or instances of stepping carefully through a landmine are no more persuasive than are the few mistakes Reagan himself made -- such as yanking our "peacekeeping" troops out of Lebanon directly after the Beirut massacre.

But I have just come across evidence that I haven't seen anywhere else... and this now puts me unabashedly in her corner. I now truly hope she will be confirmed.

Major Disclaimer!

I neither confirm nor deny that Patterico at Patterico's Pontifications may or may not have ever blogged on this subject, nor in the case that he has, do I either agree or disagree or even know what he may have said, in the event that he may have said anything about this at all. I am only an egg. I am Sgt. Schultz.

With that out of the way, we may proceed.

I was just reading the Wikipedia biography of Miss Miers, and I came across the following datum that absolutely clinched the decision for me:

Miers graduated from Southern Methodist University with a bachelor's degree in mathematics (1967) and from its law school with a Juris Doctor degree (1970) .

I suspect we have never had a Supreme Court Justice who actually passed classes in differential equations, possibly even partial differential equations -- and five of you reading this know how amazing that would be! -- group theory, Galois Theory, functional analysis, dynamical systems, and probably even mathematical logic. Imagine a justice who understood how to tell a convergent from a divergent infinite series, how to do a LaPlace Transform, and what Fourier Analysis is for! Or even just a justice who is comfortable thinking in N-space.

Harriet Miers has my full and unstinting support (I was about to say unqualified support, but that is too ambiguous).

Yay, team!

Hatched by Dafydd on this day, October 14, 2005, at the time of 05:41 PM | Comments (26) | TrackBack

October 13, 2005

Always My Hero, Cap

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This --

Despite the idiotic response from the White House prior to this telecon, I'm inclined to support Miers. I don't believe she'll be a disaster, and I think she'll at least improve on O'Connor. I also don't believe she'll get pushed around, but I have to be honest and say I get that impression more from what Hugh Hewitt and Beldar have argued and presented than anything the White House has bothered to do on their own behalf. I've come to the conclusion that spanking Miers over the clumsiness and incompentence of the White House doesn't make a lot of sense.

-- is about the best summary of how I feel that anyone has yet posted, including myself. Thanks, Captain Ed!

Hatched by Dafydd on this day, October 13, 2005, at the time of 03:10 PM | Comments (1) | TrackBack

Testimonial Tiff

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It's been three days since my last post about Harriet Miers, which I think is a reasonable cooling-off period; I will continue talking about the nomination occasionally, as new issues arise -- and of course, one has just arisen, ergo....

The newest charge, and it's remarkably silly, is that she dissed the Federalist Society in 1990, when she was a defendant in a lawsuit against the Dallas City Council, of which she was a member. None of my favorite blogs has jumped on this one so far, happily enough. But I figure it's important to nip it in the bud anyway!

The lawsuit charged, evidently, that there was some racist plot to keep blacks and Hispanics off the city council. I'm not exactly sure of the facts in the case; keep them off how? It's an elected council, isn't it? But they're likely not relevant to this particular charge against Miss Miers. In the course of the trial, she was subpoenaed to testify, and the following exchange occurred (via the Drudge Report; I'll assume throughout that Drudge is accurate):

Q. Ms. Miers, are you a member of any predominantly minority organizations, such as the NAACP, Black Chamber of Commerce, Urban League or any other predominantly minority organizations?

A. Women minorities?

Q. Well, maybe predominantly racial and ethnic minorities?

A. No.

Q. . . . . In your capacity as an at-large member do you think being involved in such organizations might assist you in having a perspective that -- bring a perspective to your job that you don’t have?

A. I attend meetings designed to give me that input. However, I have tried to avoid memberships in organizations that were politically charged with one viewpoint or the other. For example, I wouldn’t belong to the Federalist Society any more than -- I just feel like it’s better to not be involved in organizations that seem to color your view one way or the other for people who are examining you. I did join the Progressive Voters League here in Dallas during the campaign as part of the campaign.

Q. Are you active in the PVL now, do you intend to be?

A. No, I am not.

Q. Do you think the NAACP and Black Chamber of Commerce are in the category of organizations you were talking about?

A. No, I don’t. . . . .

Transcript of Trial, Roy Williams et al. v. City of Dallas, No. CA-3-88-152-R, pages V-46 to V-47 (U.S. Dist. Ct., N.D. Tex. Sept. 11, 1989).

Let's get one point out of the way at the start: Miers joined the Progressive Voters League "during the campaign [for the Dallas city council]," in 1989. At that time, as Ed Gillespie has noted, she was a conservative Democrat, perhaps in the mold of former Georgian Governor Zell Miller.

(A year earlier, she had donated money to Al Gore's first presidential campaign -- back then, Gore was an ardent member -- and charter member -- of the Democratic Leadership Conference, the last attempt to lead the Democratic Party back to sanity on issues such as defense and the economy; he was not then the Rantin' Al that we all know and loathe today.)

I'm not a Texan; but my guess is that back in 1989, in Dallas (where the PVL was still strong), it was probably de rigueur for any Democrat running for local office to join the PVL during the campaign; the conservative Dems would probably just drift away after being elected, as Harriet Miers testifies she did.

So let's get to the meat: the Federalist Society, the NAACP and the Black Chamber of Commerce, and why the first could be considered "politically charged with one viewpoint or the other," while the latter two not.

First, let's just compare what the organizations themselves say. Here is the Dallas Black Chamber of Commerce:

Dallas Black Chamber of Commerce
Founded 1926

The Dallas Black Chamber of Commerce serves as an advocate for the creation, growth and general welfare of African American business in the Dallas community. The Chamber actively promotes the expansion of public/ private sector business opportunities on behalf of its members through referrals, partnerships, seminars, technical assistance and marketing. We continue to focus on economic and business development, education, convention/tourism, special projects and member services.

(The National Black Chamber of Commerce didn't exist at the time of the lawsuit, being founded three years later; but it has a similar mission statement.) This clearly is a business alliance, not an overtly political organization; it may have been hijacked by the Democrats; many such organizations are, though I don't specifically know about this one. But if so, it's an apolitical organization that was hijacked, not "politically charged with one viewpoint or the other" by its very nature.

And here is the NAACP:

Mission Statement

The mission of the National Association for the Advancement of Colored People is to ensure the political, educational, social and economic equality of rights of all persons and to eliminate racial hatred and racial discrimination....

The principal objectives of the Association shall be:

To ensure the political, educational, social and economic equality of all citizens

To achieve equality of rights and eliminate race prejudice among the citizens of the United States

To remove all barriers of racial discrimination through democratic processes

To seek enactment and enforcement of federal, state and local laws securing civil rights

To inform the public of the adverse effects of racial discrimination and to seek its elimination

To educate persons as to their constitutional rights and to take all lawful action to secure the exercise thereof, and to take any other lawful action in furtherance of these objectives, consistent with the NAACP’s Articles of Incorporation and this Constitution.

Clearly the NAA(L)CP has been hijacked by the screaming radical Left, and was, though to a lesser extent, in 1990. Arguably, the entire political approach of NAACP founding saint W.E.B. DuBois is far too aligned with the politics of aggrievement, much more so that, e.g., his great rival, Booker T. Washington. But Miers is correct that the organization itself is not overtly partisan-political in nature, any more than is the ordinary Chamber of Commerce -- despite the fact that it undeniably leans to the right.

On paper, neither of these two organizations is overtly "politically charged;" the political charge comes from the personalities who run them, not from the structure or mission. Heck, even I could get behind the mission statement of the NAACP -- if only they, themselves could!

By contrast, here is the Federalist Society:

Our Purpose

Law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology which advocates a centralized and uniform society. While some members of the academic community have dissented from these views, by and large they are taught simultaneously with (and indeed as if they were) the law.

The Federalist Society for Law and Public Policy Studies is a group of conservatives and libertarians interested in the current state of the legal order. It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be.

The Society seeks both to promote an awareness of these principles and to further their application through its activities. This entails reordering priorities within the legal system to place a premium on individual liberty, traditional values, and the rule of law. It also requires restoring the recognition of the importance of these norms among lawyers, judges, and law professors.

In working to achieve these goals, the Society has created a conservative and libertarian intellectual network that extends to all levels of the legal community.

The difference is stark. The Federalist Society is specifically and particularly a political-advocacy organization organized against "orthodox liberal ideology" and in support of "a conservative and libertarian intellectual network" within the legal community. In its very nature, it is libertarian-conservative, and it declares liberalism its enemy.

Now, I happen to thoroughly agree with these politics. If I were a joiner, this would be the first organization I would join (the only organization of which I'm an active member is Science Fiction and Fantasy Writers of America, my professional organization). But Miers is absolutely right that the Federalist Society is "politically charged with one viewpoint or the other."

As to whether elected members of a city council should be members of such organizations, I don't see why not; but on the other hand, I was never a conservative Democrat in an increasingly liberal Democratic party, worried about getting reelected, and embroiled in a politically charged lawsuit, as Miers was at that time. At another time and place, she may well have praised the Federalist Society -- and lo and behold, she did exactly that back in April of this year, when she was not under consideration for any judgeship, and indeed no openings on the Supreme Court yet existed: Sandra Day O'Connor did not announce her retirement until July 1st.

So once again, a hurricane in a hatbox. She answered carefully, legally, and correctly under hostile direct examination in a lawsuit back when she was still a conservative Democrat in a way that was calculated not to piss off her constituency any more than necessary. That's all.

Hatched by Dafydd on this day, October 13, 2005, at the time of 03:04 PM | Comments (6) | TrackBack

October 11, 2005

No, She Didn't

Hatched by Dafydd

UPDATE: Welcome, readers from InstaPundit, Michelle Malkin, Captain's Quarters, Patterico's Pontifications, JunkYardBlog, California Conservative, UNCoRRELATED, and Media Lies!

UPDATE 11 October 2005 9:29 pm: Before delving into the minutiae of how many miliseconds elapsed between various phrases in Laura Bush's answer, let's all take a step back and look at the big picture. The charge from Michelle Malkin and Captain Ed is, boiled down, that Laura Bush is calling opponents of Miers "sexist." That is, that Mrs. Bush is a liberal.

This is errant nonsense. There is nothing whatsoever in her background that would make us think she is a liberal. In fact, she's likely more conservative than Bush. So please, folks, get a grip. The MSM deliberately misreported this in a way designed to split us further apart... and by golly, it worked! So let's sit down, take a stress pill, and talk this out....

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This post is not about Harriet Miers; she is merely cosmic background radiation. Rather, I rise as a gentleman to defend the besmirched honor of the First Lady.

Despite the newest charge sweeping the blogosphere, Laura Bush did not call Miers opponents "sexist."

A partial transcript appeared in two Washington Post articles (two completely different articles posted one minute apart); the second article (from Reuters) used that micro-bite, which isn't even an accurate transcription, to drive the headline:

Laura Bush says sexism possible in Miers criticism
by Tabassum Zakaria
Reuters
Tuesday, October 11, 2005; 3:13 PM

COVINGTON, Louisiana (Reuters) - First lady Laura Bush joined her husband in defending his nominee to the U.S. Supreme Court on Tuesday and said it was possible some critics were being sexist in their opposition to Harriet Miers.

"That's possible, I think that's possible," Mrs. Bush said when asked on NBC's "Today Show" whether criticism that Miers lacked intellectual heft were sexist in nature.

The other story used the same flawed transcription:

Asked by host Matt Lauer if sexism might be playing a role in the Miers controversy, she said, "It's possible. I think that's possible. . . . I think people are not looking at her accomplishments."

Alas, two stalwarts of the conservative blogosphere, Michelle Malkin and Captain Ed, relied upon that bad transcript from the epitome of the MSM to drive stories of their own attacking Mrs. Bush. Malkin was typically brief and cutting:

So, the First Lady pulled out the sexism card in her defense of Harriet Miers on NBC's Today Show.

Matt Lauer lapped it up.

Did the White House not inform Mrs. Bush that some of the most vocal criticism and questioning of the nomination comes from conservative women? Or does she buy into the Left's conservative-women-are-self-loathing-traitors-to-their-gender line, too?

I feel a pile-on coming. Not only against Laura Bush, but a dogpile on me for politely disagreeing with Michelle Malkin. But in reality, having just watched the video up on the Today Show's website (which must be viewed using Internet Explorer 6, evidently), I can say that Malkin's take on this is totally wrong and backwards in every respect.

In the first place, Malkin has the order backwards: it was Matt Lauer, not Laura Bush, who "pulled out the sexism card;" Laura Bush never used the term. Second, far from "lap[ing] them up," Lauer never even returned to the question. I listened to the entire segment, and I particularly played the relevant snippet over and over, trying to get every word even when Lauer, Bush, and Laura Bush were talking over each other. Here is my own transcription of that miniscule portion of the fourteen-minute segment; this part starts at 7:58 into the main segment, but you have to sit through a thirty-second commercial first:

Lauer: [to President Bush] You said she’s the most qualified candidate for the job. [points to Laura Bush] Would you agree with that?

Laura Bush: Absolutely. Absolutely.

Lauer: You had pushed for a woman to be the nominee --

Laura Bush: That’s right. And I know Harriet well, I know how accomplished she is, I know how many times she’s broken the glass ceiling herself. She’s a roll model for young women around our country --

Lauer: Some are suggesting --

Laura Bush: Not only that, she is very deliberate and thoughtful and will bring dignity to, uh, wherever she goes. But certainly to the Supreme Court, she will be really excellent.

Lauer: Some are suggesting there’s a little possible sexism in the criticism of Judge [sic] Miers.

Laura Bush: That’s possible. I think --

Lauer: How would you feel about that?

Laura Bush: That’s possible. I think she is so accomplished that... I know, I think that people are not looking at her accomplishments and not realizing that she was the first elected woman to be the head of the Texas Bar Association, for instance, and all the other things. She was the first, uh, woman managing partner of a major law firm. She was the first woman hired by a major law firm, her law firm.

George Bush: My attitude, Matt, is that when people get to know here, they’ll see why I picked her.

Laura Bush: They will. In the confirmation hearings alone, they’ll, they’ll see what she’s like.

What a difference a single interruption makes! In the deceptive version being pedaled by Reuters and the Post, they have Laura say sexism was possible and then repeat it for emphasis: "I think that's possible." This has the subtextual effect of making it appear certain that the First Lady was agreeing with Lauer's question, that critics were motivated by sexism.

But in reality, Lauer asked the question and paused; Mrs. Bush started to answer and was cut off by Lauer, who finished asking the question... so the First Lady, being a trouper, simply re-commenced her same answer. She did not say "that's possible... I think that's possible;" she dismissed the charge with a curt "that's possible," then started a new sentence on a different topic.

[This is the paragraph that some critics, especially Patterico, dispute most. I did not make my determination by timing pauses with a stopwatch; my analysis is based upon the structure of the response itself: she starts to answer, she is interrupted, and when she answers the second time, she quickly shifts away from the question Lauer asked to the (probably memorized) answer she wants to give, about Miers' accomplishments. She is not repeating for emphasis; she is repeating because the boor talked over her answer. -DaH.]

Listening to the audio, it is clear that she was not agreeing with or even emphasizing the point. In fact, she was brushing it off. She said the most non-commital thing it was possible to say: "that's possible." In fact, if anything, she underplayed it; I have absolutely heard criticism that is clearly sexist... I heard a caller on a recent Hugh Hewitt show say that he opposed Miers because every time we let a woman onto the Supreme Court, she rules just based on her feelings. But Laura Bush simply brushed off Lauer's suggestion and launched into a litany of Miers' accomplishments (which I am not here to argue).

(I just know that somebody is going to argue that she nodded her head as she spoke those words; but then, she actually both nods and shakes her head constantly and randomly throughout her segment. She's bobbing, not nodding. I think it's just nervousness, just like her uncomfortable, little laugh. I don't think she enjoys the spotlight at all.)

Captain's Quarters fell into the same MSM honey-trap that nabbed Michelle Malkin.

Instead [of answers], we get attacked for our supposed "sexism", which does more to marginalize conservatives than anything the Democrats have done over the past twenty years -- and it's so demonstrably false that one wonders if the President has decided to torch his party out of a fit of pique. After all, it wasn't our decision to treat the O'Connor seat as a quota fulfillment; that seems to have originated with the First Lady herself, a form of sexism all its own.

Again, Laura Bush did not call critics sexist. She did not even agree with Lauer that they were sexist. Close examination of the transcript -- or simply viewing the segment -- shows that she brushed off the question and instead simply gushed about what she saw as Miers' accomplishments.

Reuters then creatively massaged her words -- by breaking them up in a non-natural way -- to falsely make it appear as though she were lobbing the "sexist" bomb. And two of our most brilliant minds swallowed the bait, hook, line, and curve ball.

[As I noted to Patterico, consider the title of the Reuters story: "Laura Bush says sexism possible in Miers criticism." Did she say that? No, she did not. A more accurate title would have been "Laura Bush fails to kick Matt Lauer in groinal area for suggesting sexism behind Miers criticism." Maybe he deserved it, but that's not exactly the First Lady's job. Though it sure would have made for good television.... -DaH]

For the love of God, Montresor, you must remember that these people do not mean us well. Reuters and the Washington Post are beside themselves with glee at the internecine GOP warfare; it is they, not the White House, who are "pour[ing] more gasoline on the fire," as Captain Ed titled his post. We know the MSM lie and distort, particularly when transcribing oral statements that have a chance of fanning the flames.

In a situation like this, slight differences in wording, or even when someone draws breath after being interrupted, can completely change the meaning of a sentence. We in the 'sphere have a duty to measure six times before we leap. In this case, all it took was a click on a javascript link and the will power to sit through Matt Lauer's insufferable boorishness for a quarter of an hour.

Category ►►► Judiciary

February 01, 2006

The Two-Edged Sword, Revisited

January 31, 2006

The Two-Edged Sword

January 26, 2006

Filibuster Count: Two to Go

January 10, 2006

The New York Times Needs to Read Power Line

November 01, 2005

Alito Lit. 101

October 31, 2005

Judge Alito -- Breaking News!

AP Sez Alito! -- and It's Now Official

October 28, 2005

Where To?

October 27, 2005

Miers Withdraws From Supreme Court Consideration

October 26, 2005

Waiting for Anita

October 24, 2005

More Questions to Ask Harriet Miers

I Support the Miers Nomination

October 23, 2005

George Will: the Old Maid in the Popcorn Bag

October 19, 2005

Summary of Judge Robert Bork's Hit Piece On Bush

October 17, 2005

What I Would Ask Strict Constructionists

What I Would Ask Miers

October 14, 2005

New Reason to Support Harriet Miers

Major Disclaimer!

October 13, 2005

Always My Hero, Cap

Testimonial Tiff

October 11, 2005

No, She Didn't

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