Questioning The Court

It's interesting, as a liberal, to watch Ross Douthat and Daniel Larison argue over whether the judicial choices of recent Republican presidents have actually achieved anything for social conservatives. On the Left, there's very little ambiguity as to the Court's shift; the view looks much more like the picture Cass Sunstein recently painted in The American Prospect: "In 1980," writes Sunstein, "John Paul Stevens stood at the center of the Supreme Court. Today, he is its most left-wing member -- and he hasn't changed."

Granted, much of the Court's right-wingery is economic, rather than social, in nature. Their decision in Ledbetter was far more radical than anything they've offered on abortion. But I think, in the ferociousness of Larison's discontent, I see the seeds of a compromise. In the next issue of TAP, Ted Kennedy has a piece arguing that we're choosing Supreme Court justices in a tremendously illogical and unhelpful way, focusing on their personal qualities and stated "philosophies" rather than concrete explanations of how they would rule on important cases of the recent past. It's time, Kennedy argues, to end that bizarre custom, stop letting nominees hide behind "precedent," and begin uncovering what these men and women really think. And if the Right is growing as restive as the Left with the surprising behavior justices exhibit once confirmed, maybe Kenney's argument has a chance....

Sammydammerung Denied

By Neil the Ethical Werewolf

I’ve always respected Matt Yglesias' tactical insight. His Social Security post from last March is probably the best single-issue tactical post I’ve ever seen. (Read it if you haven't – the analysis of intra-GOP tensions is particularly excellent, and time has proven him right.)   This is why I was stunned at the lack of sense he was making on the Alito nomination, all week long.

We start with a bit of polling literalism:

In an effort to further provoke the ire of the blogosphere, here's a poll showing that 53 percent of voters think Alito should be confirmed and 27 percent think he shouldn't be. 

But then you get other polls where the vote comes out 17-7, with a whopping 70% unable to say.  (77% had neither a favorable nor unfavorable impression.)  This is very soft support.  Remember, Alito hasn't been in the public eye for very long, and he's lacking in any exciting qualities that win firm support from average voters.  Fight the media battle well, and those numbers move at Vince Young speeds. 

In the same post, Matt goes on about how the other big current issues are bad for the Republicans -- culture of corruption, gas prices -- and we shouldn't do anything that displaces people's attention from them.  He thinks that everything will come down to the question of whether filibustering is okay, which isn't an issue where Democrats do particularly well.  Maybe this would've been the issue if we were talking about seven lower-court judicial nominees, but here we're talking about one guy for a big job.  Democrats talking about his viciousness and incompetence versus Republicans making noises about Senate procedure is a battle we win.  Remember, there's not much that's inherently attractive about the guy, and it's not like we're up against a widely beloved president.  We just need to make a compelling case against Sammy Alito. 

And there is a compelling case to be made.  Doe v. Groody is the gift that keeps on giving -- Scott, Lindsay, and Iocaste have the goods.  You get the sound bite about how he let the cops strip-search a 10-year-old girl, you get to tease him for his telepathic theory of interpretation (he claims that the magistrate intended to let the police search all occupants, when the warrant doesn't say that and there's no publically available evidence to suggest it), and that segues you into criticizing his competence as a judge.  And then there's Roe, which he doesn't regard as settled law.  You get 69% saying that they'd oppose him if he were going to make abortion illegal.  Now I'm guessing that we don't get a full 69% of people behind us just with his Roe views, but it's definitely something to hit him with.  People who know more than I do about his past rulings can find some more cases to beat him up on. 

Let's all be Harry Reid for a moment and consider the broader narrative starting with Harriet Miers:

I have not forgotten that Judge Alito was only nominated after the radical right wing of the President's party forced Harriet Miers to withdraw.  The right wing insisted that Justice O'Connor be replaced with a sure vote for their extreme agenda.  Four days of hearings have shown that Judge Alito is no Sandra Day O'Connor.

Keep this going, and the media battle is yours to win.  Relative to Miers and Roberts, Alito is further out of the mainstream.  Throw on a few anonymous leaks about how Alito is crazy and unless he proves himself reasonable we're going to filibuster, and you shape the coverage at will.  The position of undefined political entities will be determined relative to defined ones, and we could've defined Alito a lot further right than we did.  Even if we couldn't get enough people together for a filibuster, Biden and Feinstein could've kept quiet about how things were going until the hearings were done, so that Alito would've been seen as filibuster-worthy from the start. 

Speaking of the filibuster, we've got this from Matt:

Realistically, the question facing the Alito nomination has always been whether Alito will be confirmed and the nuclear option implemented or whether Alito will be confirmed without the GOP needing to break a filibuster. But a congressional minority can't actually stop the Republicans from doing what they want to do.

But we've got this from Mark Schmitt in November:

But to pull off the Nuclear Option banning filibusters on judicial nominations will still require an extraordinary exercise of leadership and party discipline to force Senators to do something many of them don't want to do. Frist couldn't quite pull it off five months ago, he sure can't do it now...

...the prospect of a "final showdown" in which Alito is confirmed by the Nuclear tactic is just not going to happen in a Senate effectively run by Harry Reid.

If Matt has a story to tell about why Schmitt was wrong, I'd really like to hear it.  That's not just rhetorical -- a Yglesias-Schmitt exchange on the issue would be educational for me and probably a lot of other people.

Back in November, I bet money on 10:1 odds on the Democrats beating Alito.  (Don't worry, a certain Texas quarterback has won me more than I'll lose here.)  I'd been watching Harry Reid from a year ago when he laid the groundwork for undermining the Nuclear Option, and I knew he was going to fight this as hard as he could.  Bold Democrats beat Privatization and the Gulf Coast Wage Cut, and forcing Bush to play around the filibuster by nominating Roberts was well done.  (If you consider Roberts a replacement for Rehnquist, Roberts might've moved the court left.)  Sure, a filibuster takes 41, and we've got 2 in Arkansas, 3 from the Dakotas, and 1 in Nebraska.  But if Alito is seen as a bad judge or a crazy ideologue, and Frist loses control of his people, we have a shot at flipping some of the Republicans who have pledged support for Roe, at least for the up-or-down vote. 

Sadly, the Senate isn't the House.  A Minority Leader can't make members vote right, or keep their loose lips from sinking ships.  I'm as personally impressed by Harry Reid as I was before -- he gave the right soundbites, I can't see a wrong move he made, and he still looks to be playing for something.  If only his Harriet Miers gambit had come through!  I'm a lot less impressed with the Judiciary Committee team -- Joe Biden and his hat in particular.  They didn't do the Doe v. Groody grilling properly and passed up the attack on Alito's competence that could've resulted.  Worst of all, they tipped their hand early and gave away the ability to define their enemy. 

Barring a miracle forever proving that Kossacks are God's chosen people, Alito will be confirmed.  Roe will survive if John Paul Stevens does -- depending on whether Roberts meant what he said about it being "settled law", we're still up 6-3 or 5-4.  Black-robed conservatives will still be able to whittle away at abortion rights around the edges.  The theocratic right will feel loved by their Republicans, not cheated by Harriet Miers or some Reid-approved post-Alito pick, and happily come out to vote in November. 

Sammydammerung

By Neil the Ethical Werewolf

Thanks to Harry Reid’s pwnage of Bill Frist, we’re facing Bush’s most extreme nominee with the filibuster in hand and a credible threat to throw the Senate into chaos if the Republicans go nuclear. I won’t go into the many problems with Strip Search Sammy here. I’ll give the political argument that if it comes down to a question of filibustering or not filibustering, a filibuster we must have.

If we bring Alito down with a filibuster, the next nominee is likely to be more moderate. With his approval ratings in the 30s, Bush can’t hope to keep throwing right-wing nominees into filibusters and then beat us with the obstructionism argument in the 2006 election. He’ll probably meet with Harry Reid and find himself some Reid-approved moderate without Miers’ incompetence issues so that he can get the whole Supreme Court mess off his hands. Depending on how this goes, we may be able to generate another Miers-like fissure in the Republican base.

Mark Schmitt says that “one thing is for sure: the prospect of a "final showdown" in which Alito is confirmed by the Nuclear tactic is just not going to happen in a Senate effectively run by Harry Reid.” Lots of Republicans who have a stake in Senate business moving forward don’t want to blow up the filibuster and face Reid’s Senate-paralyzing retaliation. So if we can get the filibuster going, the Republicans won't stop it. Alito will be defeated, and a more moderate nominee will take his place.

Even if Schmitt is wrong and the Republicans find 50 Senators willing to go nuclear, Reid's retaliation will be awesome enough in itself. More procedural moves like Reid's closed session on WMD intelligence this week that at once tie up Senate business and point to Republican malevolence will be greatly appreciated. Given that in many cases we'll be interrupting some very bad business (like this week's awful budget reconciliation package) more disruption would be something to cheer. Matt Yglesias has argued that liberals are better off long-term with the filibuster destroyed, since it might prevent us from passing nice social programs someday. While the Republicans are, as I understand it, planning only to eliminate judicial filibusters, it's not clear that the impact of a move like this can be contained.

Getting 41 Democrats to stand up and filibuster will, most likely, be the major hurdle. If you’re lucky enough to have a Democratic Senator or even a moderate Republican, it might be time for a phone call or a letter telling them that Strip Search Sammy must be stopped, by any means necessary. Addresses and phone numbers can be found here. With my Pennsylvania registration and cell phone number, I’m going to give Arlen Specter’s office a ring right now. (Sure, he’s not likely to join the filibuster, but we want him on our side.)

Up Or Down?

From Schumer on MTP:

George Bush, say whatever else you want about him, does not back away from a fight. I will say this, if he were to withdraw the nomination, it would be a stunning defeat for George Bush, and here's what I think it would show. I think it would show that a small group way over at the extreme had power over the White House. After all, not a single Republican senator has at this point called for Harriet Miers' resignation. And so if President Bush is going to march to the drum of a group that I think most Americans would consider out of the mainstream, it's going to be a real revelation to the American people and that's why I think he can't do it.

In the coming weeks, it's exceedingly likely that Miers' nomination will either fail in the Senate or be withdrawn by the White House. That is not only a show of weakness, but the President caving to extreme elements of his base. As Schumer says, most politicians are withholding judgment on her. In polls, 11% more Americans want Bush to continue supporting his nominee than want him to withdraw. Now, I, a partisan Democrat, want Miers to fail, but I know that mainstream Republicans believe all judicial nominees deserve an up-or-down vote, and would hate to see their deepest wishes and dream destroyed by a couple of conservative extremists.

Against Brad DeLong's "For Harriet Miers"

Posted by Nicholas Beaudrot of Electoral Math

The esteemed Brad DeLong comes out in favor of confirming Harriet Miers, but makes, in my view, two critical errors [emphasis mine]:

She is a hard working, intelligent, savvy lawyer with a strange fixation on George W. Bush. She has had the experience of making her way as a career woman in late-twentieth century America, which cannot help but have given her a considerable education in what's what and where's where. Back her up with good, moderate clerks and she will do fine.

The first error is to believe that the "strange fixation on George W. Bush" is not a problem. There is historical precedent for a President appointing crony Justices who then undue deference to the executive branch. Most famously, Fred Vinson penned the dissent in Youngstown Sheet & Tube Co. v Sawyer, claiming Truman had the right to seize steel mills during the Cold War. As the various cases question the executive's right to arbitrarily detain US and foreign citizens contrary to both the Constitution and Geneva Conventions, having another justice who is deferential to executive power, especially right-reactionary uses of executive power, strikes me as a Bad Thing.

The second is to think that Miers will get "good, moderate clerks". After Justice Kennedy's apostasy in Casey v. Planned Parenthood, where he voted to uphold Roe while also permitting Pennsylvania's various abortion restrictions, members of Federalist Society essentially begin pre-screening Kennedy's clerkship applicants (this is documented in the "inside Bush v. Gore" article in the October 2004 issue of Vanity Fair, which I don't have handy for the appropriate quote). It's true that O'Connor hired moderate (and even liberal) clerks, but the Federalist Society gave up on her long ago, and she seems to enjoy having spirited debate among her subordinates even if she disagreed with them. We have no evidence one way or another that Miers will be able to staff her office with "good, moderate clerks", or if the Federalist Society cranks will vet those who wish to work for her. This, too, strikes me as a Bad Thing, though out of all the potential Bush nominees, Miers may be the one most likely to seek out moderate clerks.

The Miers nomination is a true knuckleball in the dirt; it's really not clear what liberals and centrists should do, since in the space of possible outcomes under the current executive she may be the best we can hope for on many issues. I'm with Ezra. Now that DeLay is out of the mix, and Karl Rove isn't there to push the all-rightwing-pander-all-the-time political strategy, let's extract as much political damage as we can, ditch the stillborn Miers nomination and draft Ed Prado.

What Does Miers Say About Roberts?

By Neil the Ethical Werewolf

The Harriet Miers circus has made me wonder how conservative John Roberts really is. The more I learn about Miers, the more I think about whether Bush really shares any of the goals of the theocrats and institutional conservatives who get all excited about Scalia. A lot of my belief in Roberts' conservatism derived from a belief that Bush would choose a nominee who would advance conservative goals. Roberts was stealthy enough that I didn't have much other than this to go on. But given what seems to be the case with Miers, Bush simply didn't care about advancing deep conservative goals with his second nominee. So why should I think he tried with the first?

Of course, we don't know nearly enough about either nominee, and Roberts' wife was legal counsel for a (strange) anti-abortion organization. But for the first time I regard it as within the realm of possibility that Bush will make the number of pro-Roe justices rise to 7 rather than decline to 5.

(update: After browsing the Feminists For Life webpage a bit more, I've changed my characterization of them from "seemingly moderate" to "strange", as they seem to attack men who don't pay child support in some places and support them in others.)

Betraying Ideals

On the subject of Miers' qualifications, which I haven't written much about, I think folks are conflating two very separate things: the qualifications a Supreme Court Justice needs to have and the qualifications a Justice ought to have. On the first, Miers is probably just fine -- a longtime lawyer, literate, smart enough to understand the issues that whipped through the Oval Office. There's little doubt that she'll be able to comprehend the basic points of contention and then awkwardly reason her way through the a priori conclusions that most judges pass off as justice. Indeed, it's not even clear what intelligence gets you (and for a good take on that, go here). Scalia rules different from Stevens rules different from Breyer rules different from Souter. All four are powerful minds, skilled and talented at torching lawyers and demolishing problems. But that intelligence doesn't offer them some sort of platonic Truth, they just rule in the way their biases and training nudge, albeit with considerably more intellectual fireworks along the way.

But there is a sense in which nominees to the Court ought to be highly-skilled, highly-qualified, so brilliant they border on telekinetic. Few offices in America are as symbolically charged as Supreme Court Justice. Even the President, who's supposed to be the nation's brightest light, is widely-understood to be shackled to the grimy realities of politics. But the Court, those nine robed behemoths we've lovingly cloistered away from all other branches of government, all other points of influence, all because we want their awesome minds to whir without interruption or distraction. And, out of reach though that may be, it's good to have that symbol floating around the Republic, it's healthy.

When we elect presidents like Clinton and nominate judges like Roberts, we're reaffirming the meritocratic ideal. When we install dimmer bulbs like Bush and merely decent nominees like Miers, we're admitting that this is no meritocracy after all. And maybe that's better, certainly it's more honest. But part of the trick of keeping an America is living in the real, oft-tawdry country while affirming its mythic potentiality. Used to be that the Supreme Court and the Presidency were key in that. But Bush, Miers? We're supplanting meritocracy with nepotism and cronyism. Is that the message we want for our kids?

In Defense of Miers

Max Sawicky is endorsing Harriet Miers for SCOTUS. I'm inches from following him. Unknown, untested, unqualified though she may be, any situation where Bush is nominating and conservatives are scrutinizing is one where certainty is our vicious enemy. With a conservative majority in the Senate, anyone Bush nominates who's got a hint of definition to them will have to appeal much more to Tom Coburn than Dick Durbin. And despite liberal fantasies of heroic crusades and unstoppable filibusters, we've neither power nor pull here, we detonate the nuclear option and the only ones who blow up will be ourselves.

Think this through for a sec. Let's say, best of all possible worlds, that we filibuster, Frist squeezes the trigger, Reid shuts down the Senate, and public opinion stays with us. Bush, sighing, announces that Miers has withdrawn her name from consideration. Yippee! He's listened to the cries for experience and academic brilliance and will name in her stead the widely-respected legal scholar Michael McConnell.

We gonna take him out too?

Betcha we won't. Because we can't. Bush has an unlimited number of wingnuts to draw from and we have a very limited public tolerance for filibusters to rely on. We can do it once, but probably not twice, and if twice, definitely not thrice. So we're really stuck.

With Miers, her lack of definition, the obvious primacy of her flattery of Bush rather than his knowledge of her ideology, and her past history of surprisingly liberal statements on a variety of important issues makes her the best hope we've got for a second Souter. And even if she is unqualified, unable to punch at the intellectual weight of the Court, that may yet prove a blessing as the mostly-liberal legal community could help her evolve left. As angels on her shoulder, they'll have to vie with Scalia's demonic whispering on the other arm, but if we can't win an argument with Antonin, we deserve to lose anyway.

So am I endorsing her? Nope. But I'm pleased with the pick. At a moment when conservatives could jam our worst fears through the confirmation process, that Bush's nominee is giving them the shakes is far more than I ever hoped for.

Bush's Nomination

I should probably be offering some more coherent thoughts on Miers than "conservatives dislike her", although watching their heads go "pop!" sure is fun. Poor kids. They thought electing a cipher and surrounding him with conservative ideologues and Republican wisemen would result in a sort of Robo-Republican, a candidate genial enough to take office and suggestible enough to govern -- pun not intended -- right. Instead, Bush reacted as most small men in big boots do and surrounded himself with folks even less qualified than he. With his Spidey Sense tingling, Bush staffed his administration with a who's who of neocons grateful to come in from the cold and Texan loyalists eager to erase their regional insecurity through national actions. Classic spokes-and-wheel formation -- the connections and loyalty all flowed towards Bush, not the party or each other.

What was different about this case was that all manner of conservatives got shafted. From the theocrats to the libertarians to, eventually, the neocons, the only group who found Bush a reliable genie were the plutocrats, and they're more self-interested Rockefeller types than ideologues. But that's because Bush was never into ideology, he was into power, into winning. That's what happens when you pick a cipher. In politics, if you're not driven by ideology, you're driven by drive. And with that sort of self-referential motivation schematic undergirding the candidate, better bet he's no more wedded to your agenda than his.

Of course, the spurned factions of America's conservative fraction turned to that old standby to explain the defeat: fantasy. Bush was like them "deep down", he just need to win reelection, boost his poll numbers, pass CAFTA, fill the first Supreme Court seat, blah blah blah. What's hitting now is the realization that Bush is really as small and short-sighted as he seemed, it wasn't some plan or bit of overly-complicated "strategery". This time, there was nothing holding him back and, indeed, much pushing him forward. Roberts won with room to lounge, Bush needed to reinforce his base, Republicans needed to change the agenda...if there'd ever been a moment for a pitched ideological battle over a wingnut nominee, now was it.

But in the end, Bush really was a provincial, uninterested power-amasser. He wanted a Texas crony and, since conservatives deep-sixed Gonzales, Miers was the logical fallback. There's no political upside to the pick but then, for the reelected Bush, there's really no downside either. Where the fuck are congressional Republicans gonna go? What's the Christian Right gonna do? Get behind a neanderthal like Roy Moore so the country can elect a liberal like Hillary Clinton? Let 'em try. Bush has 'em by the balls. The Christian Right's influence comes from control over the Republican party, but since Bush shows little evidence of caring about the long-term health of his party, they've got nothing on him. Nobody does. He can pick who he wants.

And so he did.

Conservative Reaction to Miers

The Right is ready to jump off a cliff. I'll add to this list as the day wears on, but for now, this should give you the flavor.

RedState:

Me, the sources, everyone it seems was wrong. We've all heard the rumors, but not a one could believe the President would do that. Where is our Scalia/Thomas.

I think I'll let the President fight this battle himself, for now.

It appears, for what it is worth, that George W. Bush was the ultimate stealth nominee. He has acted like a true-blue conservative, talking the talk and walking the tax cut walk. But, he has expanded government, spent the future, and now nominated she who has the potential to be a female Souter.

David R. Levin:

But, in truth, we already know what's going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise.
[...]
If people are disappointed, they have every reason to be.

K-Lo

But near everyone I've talked to this morning feels demoralized (albeit some to differing degrees) with the Miers pick. It could be that there was just too much Priscilla Owen/Janice Rogers Brown talk in the last few weeks. But if Miers doesn't turn out to be a stealth Scalia type — maybe she will yet — people like Rick Santorum are going to be the most demoralized in the coming months.

Rich Lowry:

After the Roberts pick conservatives swooned and said Bush doesn't care about “diversity”; it's only high qualifications that matter to this bold, let-the-chips-fall-where-they-may leader, etc., etc. Don't we have to take all that back now?

ConfirmThem.com:

Harriet Miers? Are you freakin’ kidding me?!
[...]
Oh, and if any of you RNC staffers are reading, you can take my name off the mailing list. I am not giving the national Republican Party another dime.

David Frum:

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect.

BIll Kristol:

I'M DISAPPOINTED, depressed and demoralized.

John Hinderaker:

A Disappointment.

Andrew Sullivan:

Think of her as a very capable indentured servant of the Bush family. She'll do what they want. She'll be a very, very tough nut to crack in the hearings. And I have no idea about her judicial philosophy. But I imagine that's the point. When I described her as a flunky last July, a source close to Bush told me: "Don't mess with Harriet." I think they've found someone whose personal loyalty to Bush exceeds even Gonzales'. And in some ways, I see this very personal, very crony appointment to be a response to being told he couldn't pick his main man, Alberto. Harriet is his main woman.

And now, for something completely different, Harry Reid:

I like Harriet Miers.

As Matt joked, "Isn't 'Miers' a weird German misspelling for Souter?"

The right certainly think so.