Strengthening Constitutional Self-Government

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Miers nomination stalling?

This is Newt Gingrich’s attempt to persuade reluctant (and angry) conservatives to give support to Bush and Miers. R.J. Pestritto is not persuaded and uses Alexander Hamilton’s warning
against the nomination of candidates "who had no other merit than that of coming from the same State to which [the president] particularly belonged, or of being in some way or other personally allied to him," to make his point. Pestritto:

"The point here, of course, is not that the president should be prevented from nominating his allies or associates, but rather that one’s friendship with the president should not be the primary qualification one has for office. Yes, Hamilton and Marshall were close allies of the men who nominated them, but independent of this they also happened to be supremely qualified for the posts to which they were appointed, as everybody at the time recognized. By contrast, this is exactly where the Miers appointment runs into trouble: If one omits the jobs that were given to her by President Bush—the jobs that allowed her to be named to lists of the most powerful lawyers in the country—all you have left is a corporate attorney who has shown an ability for administration, both in her firm and in bar associations. Although admirable, these, without any evidence of a developed and clear understanding of the Constitution, are not the qualifications of a Supreme Court justice. Or, to put it more bluntly, the substantial weight of the evidence of her capacity to be a justice—that is, the key government positions she has held—are all the fruits of her continuing relationship with the president. If this doesn’t raise serious questions about cronyism, I’m not sure what does."

And his concluding paragraph:

"Miers may turn out to be a perfectly fine justice, but there is nothing in her record which would give us any basis to believe that. Ironically, by attempting to avoid the pitfalls of modern senatorial "advice and consent," President Bush has triggered more stringent scrutiny under the framers’ understanding of that term as a check against the nomination of home-state cronies who lack the objective qualifications for the office. The Senate should therefore diligently exercise its check of advice and consent—not in the modern sense as a litmus test concerning ideology, but as the framers intended: to assure that her qualifications extend beyond mere friendship with the president."

If Republican Senators take this advice seriously, as they surely already took note of betrayal felt among the rank and file, there is a very good chance that Miers’ nomination will not make it out of the Judiciary Committee. Sometimes you can just feel the ground--public opinion in this case--shift under your feet. This may be one of those times. I think Bush may be losing this mess that is his own creation. Charles Krauthammer doesn’t want to wait until the hearings start. He says that this nomination is a retreat by Bush into "smallness" and asks Bush to withdraw it.

Discussions - 14 Comments

I’m beginning to feel the same way about the right as I feel about the left. It’s a DU moment. Nor do I don’t think I’m alone in feeling this way.

I have no doubt that if the Chicken Little conservatives carping about Miers succeed in putting a fatal torpedo in her nomination, they will regret it for many, many years. I can’t imagine how any of them really think that knee-capping Bush as he tries to wage war while under constant assault from the MSM is good for the country or the conservative cause.

These folks have completely lost their perspective. Stupid is as stupid does.

I agree with stan. as I told the folks at NRO:

...why is converting W to a lame duck three years out is your, and apparently NR’s or at least NRO’s, preferred outcome?

The fight you wanted might not be won because of the spineless seven and the other squishes in the Senate. Losing the fight could mean it would never come up again - almost 30 years after Bork the echoes of that lost fight are still animating the players. If it is not necessary to fight, it is necessary to not fight.

First off, Bush can’t withdraw the nomination. She’s done nothing wrong.
And he won’t withdraw it. He can certainly take the conservative heat.

Her testimony will be important. And both Democrats and Republicans have plenty of incentive to be tough on her. If she can’t take the heat and generally reassure some of her doubters, SHE can withdraw. Maybe the case against her will be clear enough that she won’t be reported out of committee. But my tentative prediction is that she will do pretty well.

It’s true that the evangelicals have not enthusiastically rallied around her, as Joe and others have said, but many of their leaders have expressed satisfaction with her appointment. They may well explode if Bush abandons her. Her pro-life record is clear enough for them.

So my (again tentative) conclusion is that Bill Kristol and Charles Krauthammer have imprudently overreacted in a way that may cause themselves, the president, and the party unncessary harm. So I TEND to agree with Paul, although it was, finally, a pretty lame appointment.

Stan, Paul and Peter, I would like to quote part of a post by wm in an earlier thread:

"George Bush has, I now believe deliberately, sent mixed signals about the correct size of government. Sure, sometimes he went on about this phony baloney "compassionate conservativism" - new age speak for "our big government instead of their slightly bigger one." He has also, however, used rhetoric aimed directly at the conservative small government base. The latter has proven to be exactly that - rhetoric. I suspect that, for example, the social security reform was not any kind of serious program, but was instead meant to tantalize exasperated conservatives. We liked what was being said. After all, "Bush touched the third rail of American politics!" But he did not actually do anything. This bait and switch is the rule, not the exception."

One can add to that immigration, prescription drugs, support for Spector against Pat Toomey (the list goes on and on). So, how exactly is it that "knee-capping (not)good for the country or the conservative cause."? A good knee-capping is EXACTLY what this Administration and the Republican party needs. Otherwise, conservatives are just the sheep of the Republicans (just like african-americans are the sheep of the Democrats).

So how are the "sheep" helped by withdrawing this nomination? What can we expect to get in its place? We are already wringing our hands over how a president "weakened" by failures to execute at home and at war can muster the moxie to face up to the stolid senatorial left. How, sabotaged by his own troops, does he come forward with a better (from the conservative persepective) nominee that will survive the Democratic sharks, now frenzied with the smell of Republican blood? This nomination may not be the one we want, but it is the one we have, and we are not likely to get anything better this time out. Close ranks.

Bush should withdraw this nomination. That’s a no-brainer. Miers has no credentials for the job and no core of support among the Senators or any significant segment of the country. Bush has so weakened himself by making this embarrassing nomination that any further weakening as a result of withdrawing it would be marginal at worst, and only short term, as in the long term he will put himself in much better shape by nominating a well-credentialed conservative that rallies the base and ties the Left in knots the way it’s been for most of the past five years. Mike Luttig, Alice Batchelder, Mike McConnell, Sam Alito--just to name a few. Any of these picks would be a solid constitutionalist conservative who could talk circles around the Dem buffoons on the Judiciary Committee. That’s how Bush wins by withdrawing: putting up an attractive conservative with stellar credentials who, like Roberts, can outsmart the Dems and show the country just how smart and qualified (s)he is for the important job of Supreme Court justice. It’s so easy I’m still at a loss to see how they so colossally screwed it up the first time around.

Withdraw? Hogwash. It ain’t gonna happen. Believe it or not, National Review, Bill Kristol and bloggers don’t really have that much weight.

Paddy asks: "So how are the "sheep" helped by withdrawing this nomination?" I would ask how are conservatives helped by supporting it? In other words, as a conservative, we do NOT want to be sheep. By supporting this ridiculous nomination we will be sheep. Paddy asks: "How, sabotaged by his own troops, does he come forward with a better (from the conservative perspective) " He does NOT come out better, and that is the very point. Conservatives are NOT helped by supporting a non-conservative that feeds us a little rhetoric now and then, but on the substantive issues has giving us the same port/liberalism we could expect from a "moderate" Democrat. I ready to vote for a moderate Democrat, if nothing else to gridlock this government ran by Republicans who claim to be "conservative" but are as liberal as anything else we have had in the last 30 years. This nomination has made be appreciate Senator Kennedy as a man of integrity - unlike Bush, he at least admits who he is. Paddy says: "This nomination may not be the one we want, but it is the one we have, and we are not likely to get anything better this time out. Close ranks." This is exactly the sort of depressing defeatism that will keep me and many other conservatives home in 2006 and 2008. As a conservative, I WILL NOT "close ranks" around a Republican party that is substantively no different than a Democratic one, except in rhetoric. I will NOT become a sheep to be slaughtered, and neither will any other principled conservative...

I heard both Fred Barnes (on one side) and John Podhoretz (on the other) say that "Bush would sooner withdraw from Iraq than withdraw this nomination." I think that is right. And whatever else anyone wants to say about this, he should remember that. That will be the outcome, she will be confirmed, how is this self-indulgent intramural sniping at each other helping anyone?

Julie asks " how is this self-indulgent intramural sniping at each other helping anyone? " First, I am not sure why a reasoned opposition to this ridiculous nomination is "sniping" - on the contrary, it is necessary and sane if our political discourse is going to be worth anything. Second, if this president is truly "dug in" with this nomination then he is already a lame duck - the Democrats or some other imposter (e.g. McCain) already has him right where they want him. I guess it needs to be said again and again, conservatives gain nothing by supporting this nomination. We loose our integrity and our principles by supporting it. No one here seems to have any illusions that she will be a Scalia, a Thomas. She will be a flaky "evangelical conservative" at best (and as an Orthodox Christian, I do not flinch in the least from things "evangelical" - but I also do not infuse it with more content than it has, like the ability to reason persuasively and correctly on the Supreme Court) .

Perhaps what this nomination has really highlighted is the difference between a "Republican" and a "Conservative". I am the former only when it helps and at least does not hinder the latter. As one commentator has put it, conservatives have shown "discipline" by supporting this president through his many, many missteps. Why? For this very moment. What does he do? He appoints his personal lawyer because "he knows her heart". If the Republicans can win elections without conservatives than so be it. It will be a shame, because then America will be ruled by either the left-wing-wacko party (Democrats) or the not-quite-as-left-wing-wacko-as-the-other-party (Republicans). Conservatives are marginalized either way! Supporting the Republicans while being marginalized does not even leave one with his principles and integrity, and without those a person/movement is nothing at all. Perhaps "" is available...

That will be the outcome, she will be confirmed, how is this self-indulgent intramural sniping at each other helping anyone?

Do you just automatically support everything Bush does? If he commanded conservative to jump off the cliff, would you follow? Isn’t it reasonable for conservatives to be disgusted and argue against a weak nomination.

Michael McConnel should have probably been the nomination. A religious man (evangelical I think) with a proven intellect (unlike Miers).

My prediction is Senators like Brownback on the right and mavaricks like McCain who are running for 2008 will muster the votes with Democrats to defeat the nomination. We can only hope.

Just wanted to say that I’m not the paul of comment #3. FTR, though: I’m mightily disappointed in the nomination, which I do see as a wasted opportunity and bad "signal" ... even if HM does "well" during the hearings.

I’ll predict what most will say is impossible: she’ll be out of consideration within a week. This nomination was suicidal as you don’t anger your base in such a way for no reason. It was also foolish in allowing the charges of cronyism to spread. He’ll want to punish conservatives by choosing Gonzales, but that’ll just add to the problem. At some point, Cheney or Bush Senior advisors will make him realize that conservatives are not the enemy.

This nomination shows that things are not going well for the administration, whether it’s the legal problems, polls, or something else. They must not have asked Brownback or anyone with a pulse on grassroot sentiments about this.

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