October 28, 2005


Why the Right Was Wrong (HUGH HEWITT, 10/28/05, NY Times)

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

Not all critics of Ms. Miers from the right used these tactics, and those who did not will be able to continue on with the project of restoring sanity to the process that went haywire with Judge Bork's rejection in 1987. Conservatives are also fortunate that no Republican senator called for Ms. Miers's withdrawal.

But the Democrats' hand has been strengthened. Voting for or against Ms. Miers would have forced Senate Democrats to articulate a coherent standard for future nominees. Now, the Democrats have free rein.

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it "worked" with Ms. Miers. A claim of "special circumstances" justifying a filibuster will also be forthcoming.

It'll be fun to listen to these guys argue that a filibuster is beyond the Pale after they just engaged in one themselves and they aren't even constitutional officers.

Posted by Orrin Judd at October 28, 2005 6:00 AM

"Borked" became a verb. How about "Miered" as a new one meaning "to be Borked by false friends"?

The right wing opposition broke nearly every principle they claim to honor in order to fight for principles.

I particularly liked Brownback wanting Counsel memos. What was his position on the Estrada memo issue? Or the request on Roberts?

Posted by: Bob at October 28, 2005 10:04 AM

The conservatives now think they are stronger, because they can unite behind a better nominee. They want the fight - and listening to Coulter, Levin, NRO, etc., they are ready. But does the GOP have the votes, or the leadership to get the votes for a forceful conservative nominee? They don't want to answer that question. That is why I think Cornyn should be the pick - he will avoid much of the nonsense about extraordinary circumstances, and the pressure will be totally on McCain to provide the other 13 votes (if he wants to be President, he has to dance for the Right on this point).

The problem with Miers is that many who might have continued to support her pulled back as more became known about her past - and there wasn't really any response she could make.

"I repudiate my past obfuscations and fogginess - here I stand!" would not have helped her, and would have turned the Dems against her in a very public way.

I would like nothing more than to see Schumer and Kennedy and Durbin and Leahy and Biden squashed like bugs, with their bodily juices oozing on the floor of the hearing room, but that is not the true goal. A sad situation all around, for President (who should have known better), for the Senate, which is more dysfunctional than ever, and for Harriett Miers, who deserved much better.

Posted by: jim hamlen at October 28, 2005 10:42 AM


Think any two of them can unite behind one nominee?

Posted by: oj at October 28, 2005 11:18 AM

As Harriet's nomination progressed, it proved impossible to validate either her competency or her conservative persepective.

You can't really believe that conservatives were eager to hamstring Bush. It is possible to disagree with GWB on Harriet's qualifications and still support his administration's aims in both the past and the future.

The man is President of a Republic and failing to support one of his nominations to a co-equal branch does not constitute lese-majeste.

Posted by: Ray Clutts at October 28, 2005 11:18 AM

Sometimes you need to fight a decisive battle even at the risk of losing. Personally, I rate the necessity of overturning Roe as a goal equal in stature to that of fighting the war against terrorism.

Whatever Bush may have believed about Harriet's commitment to overturning Roe, her public record didn't establish a suitable degree of certainty and this issue is just not one that the "conservatives" are willing to take on the basis of trust.

By the way, I don't think that those who preferred a nominee other than Harriet are more or less conservative than her supporters.

Posted by: Ray Clutts at October 28, 2005 11:27 AM


Who are you more confident of and why?

Posted by: oj at October 28, 2005 11:32 AM


If McCain wants to be a leader, he'll deliver the votes, even that of Byrd. Otherwise, it's time for a recess appointment. Isn't Thanksgiving a recess for Congress?

And all Bush has to say is that the Senate is too dysfunctional. The President wins this kind of fight every time.

Posted by: jim hamlen at October 28, 2005 11:34 AM

Why? McCain and the Gang would have voted for Miers. Why should they take the wahoos off the hook if they get their candidate? Let David Frum carry his own water.

Posted by: oj at October 28, 2005 11:49 AM

In the end, they would have been the ONLY 14 votes for her - get it?

Posted by: jim hamlen at October 28, 2005 12:04 PM

Ray, its not really the opposition. It is the tactics Frum et al used.

Posted by: Bob at October 28, 2005 12:08 PM


She'd have won, it just wasn't a fight worth waging at this point. Why fight your own party?

Posted by: oj at October 28, 2005 12:09 PM

The NYT is always happy to print criticism Of Republicans by Republicans, and Mr. Hewitt, in a fit of pique, obliges them, to his shame. His arguments during this dustup were often self-contradictory as he flailed about trying to justify this nomination.

Her evangelical Christianity was touted, though we were enjoined from discussing previous nominees' religious beliefs. She was solidly pro-life and would not change her beliefs, Hugh assured us; then it turns out that as late as 1993 she was giving pro-choice, pro-affirmative action speeches, long after her supposed "conversion". Her executive experience would be an asset to the Court Hugh said, except that she would probably have to recuse herself on any upcoming cases. Too few answers to too many questions, and the few answers were poorly thought out and written.

Conservatives are skeptical of stealth candidates whose beliefs turnout to be not as advertised, having been burned repeatedly in the past. If the Republicans can not confirm a conservative judge with 55 votes, this is important to learn. We need to force these Senators to show their colors so we know who is our friend and who is the friend of our foes, who to support and who to replace.

Posted by: jd watson [TypeKey Profile Page] at October 28, 2005 12:41 PM


To the contrary, it would be great if Democrats would oppose nominees because of their religion, just as the neocons did. Important to show who hates whom.

Posted by: oj at October 28, 2005 12:57 PM


No, it's the opposition itself. What can conceivably be gained by opposing your own president over such minor differences among prospective nominees?

Posted by: oj at October 28, 2005 1:05 PM

Well, I'm not any more excited over the Miers withdraw than I was about her nomination. Having said that, I don't consider the ruckus to have been a Borking and I thinks it's way over the top to equate it to a filibuster. Democracy happened. Like you said yesterday, OJ, this isn't even a bump in the road.

Posted by: jefferson park at October 28, 2005 1:35 PM


These guys object to a filibuster because it's a few elected officials saying a nominee is unacceptable rather than having everyone vote on it. That's exactly what they engaged in except they aren't elected.

ABC's Note had a funny bit about being put on hold by Concerned Women for America which was announcing their demand that Ms. Miers withdraw. While you're on hold CWA plays an ad demanding that every one of the President's choices get an up or down vote...

I agree it makes no real difference which of about 100 possible picks eventually gets to be a Justice, but it is funny to watch the neocons become what they claim is unacceptable.

Posted by: oj at October 28, 2005 1:43 PM

This is dumb. In no sense was this a filibuster. She was opposed by a majority that would've voted her down fair and square.

She withdrew without threat of filibuster.

Posted by: rds at October 28, 2005 2:43 PM

I'm not sure that what Hewitt is complaining about is worse than the pro-Miers crowd validating the Left's "if you disagree with me, it's because you're racist / sexist" attack. I knew the nomination was in trouble when supporters had to resort to that non-sequitor defense tactic.

Posted by: Annoying Old Guy at October 28, 2005 2:58 PM


Yes, it's not about means--they're always justified--but ends.

Posted by: oj at October 28, 2005 4:30 PM


No Senator opposed her, just pundits. Estrada withdrew because Senators opposed him.

Posted by: oj at October 28, 2005 4:31 PM

After reading through this string, it seems to me that our host shares a number of traits with our friends way over there on the Left -- the ability to cling to his beliefs against all the evidence, the willingness to keep fighting battles long after they are lost,...

Posted by: curt at October 28, 2005 5:13 PM


What's lost? The President just names someone else on Monday. Ms Miers demonstrated exactly the kind of loyalty that made Mr. Bush pick her. And the opposition is so scared about what it did that they're dying to support him on everything else, while he can punish them at his leisure. It was embarrassing for the President but it's a pretty minor deal.

Posted by: oj at October 28, 2005 5:33 PM

Curt: OJ is a man who is still pasionately fighting WWII.

Posted by: Robert Schwartz at October 28, 2005 5:38 PM

oj --

The Meirs nomination is what's lost.

And it's not a "minor deal" if you believe judges have usurped a vast amount of power, and would like the trend reversed. Bring on the Scalias and Thomases as promised.

Posted by: curt at October 28, 2005 6:24 PM

"These guys object to a filibuster because it's a few elected officials saying a nominee is unacceptable rather than having everyone vote on it. That's exactly what they engaged in except they aren't elected."

Um, and the fact that they aren't elected is kind of significant here -- the filibuster is inappropriate precisely because it is people who wield procedural powers exploiting that power to prevent any vote. To the best of my knowledge, right-wing pundits have no formal procedural powers in our system of government, any more than has any other part of the media. They acted as private citizens. That they held the nomination up to public ridicule implicates none of the arguments against the filibuster at all -- had Bush chosen to stick it through, he could have let her come before the committee and the committee could have let her come before the Senate, and the Senate could have voted on her. In all that, there is no step where outside commentators could have prevented a vote through the exercise of their own special powers. In this case, they exercised nothing more than the power we all have, as private citizens -- that of persuading other people that they were right and that their opponents (here, the administration) were wrong.

Well, that's so . . . unless the argument against the filibuster is that the Senate must vote on every single thing that is ever proposed to be brought before it, and nothing -- no bill, no nominee -- can *ever* just be withdrawn because, for example, a plurality of the public think it was a dumb idea. I don't recall anyone ever making *that* argument, though I suppose there might well be the odd pundit who did.

Posted by: Taeyoung at October 28, 2005 7:36 PM

Elected officials use the normal procedures of the institution to prevent extreme nominees from being confirmed. It's easy enough to change the procedures if you have 51 votes to do so. The GOP doesn't.

Posted by: oj at October 28, 2005 9:33 PM