January 21, 2007


The Cause Bush Did Justice To (Jan Crawford Greenburg, January 21, 2007, Washington Post)

Bush's decision to nominate Miers was driven by his determination not to repeat his father's mistake with Souter. Of all the possible nominees, he knew Miers best, and he knew she would not change. She had been involved in the selection of Roberts; in fact, Miers had originally worried that he wasn't conservative enough. Bush was confident that she wouldn't disappoint.

Coincidentally, the opposition of conservative groups to Miers also was driven by the Souter nomination. To conservatives, Miers was an unproven and untested nominee, just as Souter had been. How could she stand up to the liberal intellectual heavyweights on the court, such as Stephen G. Breyer? Who could say she wouldn't change once Bush left town and headed back to Texas? Conservatives would not be fooled again.

Alito was waiting in the wings when Miers's nomination fell apart. Unlike Reagan, who appointed the more liberal Kennedy to the court in 1987 after his nominations of Robert H. Bork and Douglas H. Ginsburg went down in flames, Bush had no problem seeking another solid conservative. With a Republican majority in the Senate, he did not compromise. Alito was considered a solid conservative, though not combative like others, and he had hired liberal law clerks. Bush hoped that Alito, like Roberts, would prove effective in building coalitions.

The call from the White House surprised Alito. Living in New Jersey, he had been insulated from the negative Washington buzz over Miers. He had absorbed the disappointment about being passed over and had come to terms with remaining a federal appellate judge. Alito didn't know that he had been Miers's choice for the O'Connor vacancy after Roberts got the nod for the top spot. She liked his quiet confidence; he didn't seem to be pushing too hard for the job. When Alito was nominated just four days after Miers dropped out, she greeted him warmly in the White House, moments before Bush introduced him as his next nominee. [...]

[N]o historian will be able to write that Bush failed to follow through on his campaign promises regarding the Supreme Court. His nominations of Roberts and Alito -- two of the most conservative justices to reach the court in many years -- will be felt for decades to come.

Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas. Together with those two justices, Alito and Roberts make the Roberts Court the most conservative Supreme Court in half a century. Roberts and Alito will not be as forceful as Scalia and Thomas on the bench or in their opinions; they are unlikely to push moderates away with their strong views. For that reason, they may be more effective than Scalia or Thomas in finally removing the court from the contentious social issues that conservatives think belong in legislatures. With the court now poised to recede from some of those divisive cultural debates, George W. Bush and his lawyers at the White House and Justice Department will continue shaping the direction of U.S. law and culture long after many of them are dead.

Alito is obviously not as trustworthy as Miers, from a personal perspective, but is still an excellent choice.

Posted by Orrin Judd at January 21, 2007 8:36 AM

Miers was an inspired choice. She's completely removed from the ABA establishment, ivy league elitists who think they're smarter than the average bear.

Too bad Bush didn't demand the senate go on record as voting down an intelligent and independent woman.

Plenty of shame to go around here.

Posted by: erp at January 21, 2007 10:37 AM

Mrs. Erp, when a child in a tantrum threatens to kill themselves, you don't hand them a knife.....

Posted by: Robert Mitchell Jr. at January 21, 2007 11:57 AM

child in a tantrum threatens to kill themselves

Yet they did it anyhow last year, if the election results augurs are to be believed. What will be entertaining is now seeing all those Stupid Party activists and pundits and brain-trust who've been threatening to sit out an election come up with a new schtick. You can only use your Doomsday Weapon once.

Posted by: Raoul Ortega at January 21, 2007 1:40 PM

Alito won me a book. An inspired choice.

Posted by: jeff at January 21, 2007 2:11 PM

Nah, Mr. Ortega, they'll just become this generations Libertarian party. Their feet are too pure to touch the base clay, don't you know.

Posted by: Robert Mitchell Jr. at January 21, 2007 2:28 PM

Wow. Hyperbole overload. What knife and who was attempting suicide?

Alito and Roberts are okay, but I wouldn't faint from shock if they strayed ala Suter, but even if they don't, that has nothing to do with Miers being left swinging in the breeze.

I understand you boys don't like her and that's your privilege, but she was nominated and should have been given the courtesy of a vote. More than anything, the foaming at the mouth from the right and the left makes me think she would have been a great justice.

Posted by: erp at January 21, 2007 2:50 PM

You misunderstand me Mrs. Erp. I had and have not hing but respect for Mrs. Miers. My point was that the President did not force the Senate to vote because the vote would have be lost(at the time) and there would have been no gain to putting this madness of crowds moment into the record. The knife was the loss of control of congress. Do you think that Bruno's tantrum over Miers and the Ports was all a plot to raise the minimum wage?

Posted by: Robert Mitchell Jr. at January 21, 2007 3:14 PM

I continue to hold that Miers was a Carswell-style maskirovska--a deception.

The feint had two benefits, first to focus the ratification debate on qualifications, as distinct from ideology. This set up the quick follow-on with a nominee possessed of suberb backround. Next, the Miers dabate simple attritted the other side, wore them out, used up their resources, including their space in the public attention. It was an economy of force attack, a secondary effort designed to set up the decision at the Hauptpunkt.

Taken that was, it was a master stroke, all the more masterful for having had the appearance of a blunder. Iraq could have been such a stroke: pity they lost their nerve.

Posted by: Lou Gots at January 21, 2007 4:00 PM

No. Miers was the one person he knew he could count on to vote against Roe on the Court.

Posted by: oj at January 21, 2007 4:06 PM

off/t Bruno is passionate because he has something personal at stake, his kids in public schools. For whatever reason, he can't pick up and move to a friendlier location, so if he gets a bit overheated once in a while, I empathize and understand. I thank the big guy in the sky that my kids survived their schooling and that their kids go to private schools.

back on/t My point here is that Bush should have forced the Miers vote even if he had to remove both Frist and Specter from the leadership. They were both worse than useless.

Posted by: erp at January 21, 2007 5:30 PM

No, in a bad public school.

Posted by: oj at January 21, 2007 5:42 PM

Mrs. Erp, I ride Bruno because, according to his posts, he is an agent of influence. If he is the least bit successful on his radio program, his tantrum over Miers and the Ports deal helped swing the election. The minimum wage has been raised without much of a fight, and Bruno might lose his job if the Democrats are successfull in bringing back the fairness doctrine. We all suffer when perfect becomes the enemy of the good.
As far as forcing the vote, how did Frist and Specter get their jobs? Didn't we remove Newt, and those who followed because they were damaged goods? The Republicans removed them, as you wanted. Funny, their replacements quickly became damaged goods. Almost like the Democrats are happy to smear the Republican leadership until they are removed. I understand why this makes the Democrats happy, but why do you think a Republican President would play along?

Posted by: Robert Mitchell Jr. at January 21, 2007 6:13 PM

A Republican president should expect Republicans in congress to support his agenda and his nominations at the very least.

I agree that perfect is unattainable and politics is the art of the possible.

Posted by: erp at January 21, 2007 6:59 PM

Robert Mitchell

Bush lost the Senate and House, due to his failure to declare victory in Iraq and bring the troops home. Schools/immigration/port deals were not the slightest factor in the election. Also not a factor was the reasonably good economy.

Bruno's positions on schools is a winner for Republicans.

Posted by: h-man at January 21, 2007 7:29 PM

School choice is a winner because it brings in the emerging brown majority at the cost of only suburban whites.

Posted by: oj at January 21, 2007 8:26 PM

A Republican president should expect Republicans in congress to support his agenda and his nominations at the very least.

Which is why I'm still waiting to see Senator Keating-McCain exert some influence over his fellow Stupid Party members Hagel, Smith and Snowe to, at the least, shut the [expletive deleted] up and stop providing aid and comfort to the Copperhead Party. If he is unable or unwilling to even to do that, then he doesn't deserve the nomination and office he thinks is his by divine right.

(And I had no opinion on Miers other than the overreaction was self-destructive and self-defeating. They may have gotten a "better" nominee, but the whole attitude displayed was one of main reasons we have Field Marshal Pelosi.)

Posted by: Raoul Ortega at January 21, 2007 8:46 PM

H-man, you don't think Congress was responsible for their own elections? I notice they got in everytime Bush was running.....
If you think the war was the biggest factor, why didn't the Republicans do something about it? Could it be that they wasted their political capital on Miers and the ports deal, as well as the tantrum on immigration? Those were big tantrums, and people noticed. For many, that became the public face of the Republican congress, which allowed the press to sell them as failures and the war as a disaster, dispite the amazing successes of that Congress and the war. I am still stunned at how many republicans have bought into the idea that the war is going badly. No draft, no boat people, no inflation, I mean, wow! I look at the mess at the end of WWI, WWII, Korea, Vietam, and this one wins hands down. I know that winning the peace has never been an American skill, but Bush has made a good run at it.

Posted by: Robert Mitchell Jr. at January 21, 2007 8:48 PM


The funny thing for me was reading George Will complain about how Miers supposedly lacked "qualifications," which Will took to mean that she was only nominated because she was pro-life. Will said that putting her on the court would be an act of judicial willfulness, or would at least precipate an act of judicial willfulness, similar to Roe vs. Wade itself. In other words, Ivy Leaguers making bad decisions is equivalent to "plebeians" making good decisions.

Incidentally, when one takes their track record into account, I'm not sure why Will apparently thinks we need more Ivy League types at the highest levels of the judiciary.

Posted by: Matt Murphy at January 21, 2007 9:54 PM

Because Will is an elitist, not a conservative.

Posted by: oj at January 22, 2007 12:05 AM

Robert Mitchell

Yes, I'm saying none of those issues is the reason Republicans lost. Only the war in Iraq. Similar to Carter's breakthru in making Republican majorities acceptable to Americans after Democratic dominance for many decades.

Does that mean such a war is always unpopular? No. Does it mean that this particular war was unpopular when it was started? No. Does it mean that the public thinks this particular President is clueless as to how to get the US out of this War gracefully without making it appear the US is a loser? Yes.

Voting against congressional Republicans is the only method the public has to punish a lame duck President.

Posted by: h-man at January 22, 2007 5:12 AM