September 29, 2005
WHAT A DEAL
Bush Reported Near to Nominating Judge (Elisabeth Bumiller, NY Times, 9/28/05)
Republicans said there appeared to be less possibility that Mr. Bush would select Priscilla R. Owen or Janice Rogers Brown, federal appellate judges appointed by the president. Judges Owen and Brown, strong conservatives, set off bitter confirmation fights in the Senate, and Democrats blocked them for years by filibusters until a compromise on their confirmations was reached this year.One of the truly shocking things about the "Gang of 14" sellout was the naivete displayed by its defenders, who claimed that it tied the Democrats up in various ways. How can they say that Brown's nomination would be extraordinary? By saying it. The only person who's choices were limited by this deal is the President, who was put on notice that enough Republicans would defect from the nuclear option that there was no point in the future of nominating an "outspoken" conservative.On Wednesday, Senator Harry Reid of Nevada, the Democratic leader, and Senator Patrick J. Leahy of Vermont, the top Democrat on the Judiciary Committee, sent Mr. Bush a letter urging him not to name to the court any of the three judges who were part of the compromise - Judge William J. Pryor Jr. and Judges Owen and Brown.
"The nomination of any of these individuals to the Supreme Court would represent an unnecessary provocation and would be met by substantial opposition in the Senate," the letter said.
It is tempting, on the day of Chief Justice Roberts confirmation, to assume that this is not too harmful. After all, if we can still get Justices like John Roberts, what's the harm. That is still the best possible outcome -- that the deal does no harm. That gets less and less likely, however. Senator McCain has tied us to a deal in which the only group that can't be nominated to the federal bench is outspoken conservatives. That being the case, people ambitious to get onto the bench will learn their lesson -- don't be outspoken.
President Bush will not nominate Janice Brown because he cannot. He will not nominate Priscilla Owen because he cannot. He won't even nominate Michael McConnell, because he cannot. He won't nominate Viet Dinh, because he cannot. Quite the deal Senator McCain brought home for conservatives.
Posted by David Cohen at September 29, 2005 12:47 PMDoes Harry Reid speak for the Dems in the Gang of 14?
Might one interpret this new letter as Reid running scared. Blustering b/c he knows that they have no chance of stopping Brown et al?
Posted by: Jim in Chicago at September 29, 2005 1:08 PMDavid: Pres. Bush CAN nominate whomever he wishes. Let's wait and see who he actually names. If it's not a strong conservative, a major part of the base is going to be seriouly PO'd. Perhaps he doesn't care. I think he doesn't much care, but will nominate a strong conservative because that's who will appeal to him. Then I'm pretty sure McCain will make sure s/he gets confirmed, because he wants to be President, and that's his chance to make nice with the base. IF you're right that McCain doesn't want to be President, THEN Bush is indeed seriously hemmed in by the Gang, but I don't see it...
Posted by: b at September 29, 2005 1:17 PMThey only got their current appointments because of the deal. The desire for no loaf rather than half is fanatical.
Posted by: oj at September 29, 2005 1:38 PMSaid it before, say it again: if every right-wing judge wannabe doesn't get confirmed RIGHT NOW, David's gonna hold his breath until he turns blue.
Even some of the most fanatical wingnuts are starting to return to reality, because there has been less wailing and gnashing of teeth about the deal as time has gone on. David intends to be the last wailer and teeth-gnasher.
Posted by: Casey Abell at September 29, 2005 1:53 PMThe funny thing is, I don't know if I want either Owens or Brown on the SC. Owens is apparently surprisingly hostile to pro-lifers, and Brown is a bit too libertarian for my tastes.
Even so, all these assertions seem a little silly to me, and will continue to do so until we see who Bush nominates and how they do.
Posted by: Timothy at September 29, 2005 2:01 PMAs a minority party, how many judges could the Democrats stall/filibuster/defeat before their senators up for election in Red or Purple states start feeling the heat for being obstructionist? One? Two? Five? Ten? Bush still has three years in office, so time is on his side to keep nominating conservatives, even if the initial nominees are shot down.
Posted by: John at September 29, 2005 3:24 PMWho does Reid think he is kidding? His opinion is irrelevant. Who can he possibly vote FOR after voting against Roberts.
Posted by: curt at September 29, 2005 3:29 PMCasey: You keep saying that as if you think you're making some important telling point. Of course I want the president to appoint wingnuts and for the president's wingnuts to be confirmed. That's the whole point. That's my main issue in politics and, until now, it was pretty well understood that the party that controls the presidency and congress gets the judges it wants.
At least you understand that the deal stop the president from getting the judges he wants, which is apparently more than most people will admit to themselves.
Posted by: David Cohen at September 29, 2005 4:07 PMDavid's right that the deal places tremendous pressure on the President to nominate someone with no declared opinion on Roe v Wade or other controversial issues, like John Roberts.
Fortunately our bench is deep enough that this still leaves acceptable candidates. However, it's highly offensive. I would nominate Brown and fight back on the budget front if the Senate Democrats blocked her. However, I would have proposed major changes to New Deal / Great Society programs long ago, and have something on the budget front to fight for. As it is, Bush has no threats to make that would not surprise and alarm the public. He has to submit to the McCain moderates, whose main concern is to be able to look good to everyone and be able to say, when people complain of what the Supreme Court does, "Don't look at me, I'm as surprised by them as you are." (That is, unless their view is hostility to Christians, and obtaining people of no declared views is their best chance for another Souter or Kennedy.)
Posted by: pj at September 29, 2005 5:28 PMRick:
They're on the Court because of right-wingers deserting George H. W. Bush for not being pure enough. It's the same mindset as this.
Posted by: oj at September 29, 2005 5:45 PMoj - They're on the court because George H. W. Bush deserted right-wingers.
Posted by: pj at September 29, 2005 6:07 PMYeah, how'd that work out for him again?
(And, for the record, I'm not deserting the president. You are.)
Posted by: David Cohen at September 29, 2005 6:21 PMDavid: Let's just wait a few more days and see who the nominee is (although I am completely stunned that they are apparently going to wait until Monday...). If s/he's a squish, you win. Bush is having a September like his usual Augusts, but he's never been a singles hitter, has he? I predict he'll go for the fences, and I predict the Dems will NOT filibuster because they know it will be broken because McCain wants to be President, and he controls the deal.
Posted by: b at September 29, 2005 6:26 PMCurt, I think you said it all.
Reid outsmarted himself as did the others who voted against Roberts.
Posted by: erp at September 29, 2005 7:09 PMoj - He ran for re-election on a platform of tax increases, spending increases, David Souter, giving in to liberals and scorning conservatives. Maybe that's not desertion, but it's at least AWOL.
Posted by: pj at September 29, 2005 9:24 PMI was pretty young at the time, but as I recall, that wasn't exactly his platform. His record perhaps, but there's a fairly significant difference between the two.
Posted by: Timothy at September 29, 2005 11:23 PMDavid: Bush gets almost every wingnut onto the federal bench, and you complain because he doesn't get two or three wingnuts more. This is crazy. No president gets everybody he wants on the bench because every president has political opponents. Remember FDR's plan to pack the court?
And there are countless other examples from American history. Your insistence that Bush get every last wingnut onto the federal bench is, as Orrin puts it, fanatical. It's not going to happen for Bush. It's never going to happen for any president.
Posted by: Casey Abell at September 30, 2005 9:54 AM