Friday, October 28, 2005

Another Consequence of Miers Withdrawal

Now that Harriet Miers is no longer a nominee to the SCOTUS, all the insiders and outsiders are speculating on who the President will nominate next. We also have heard all manner of explanations as to why the President chose someone so obviously unqualified for the job.

I personally supported her nomination, not because I trust Bush, though I do, but because I trusted the opinions of people who know her personally, and have worked closely with her in the past. If anyone would know her judicial philosophy, they would.

I am not going to speculate on why he chose her, because it doesn't matter now. We will never know how she would have ruled, but her nomination and the subsequent withdrawal of that nomination may have direct repercussions on the current Supreme Court.

We can safely say that Justice Sandra Day-O'Connor was something of a disappointment to the Conservatives. She is often the swing vote on some divisive cases brought before the court. Laws have been both struck down and upheld because of her tie breaking vote in some very volatile issues. The recent Kelo decision for example.

It is Justice O'Connor's seat that President Bush needs to fill with this appointment.

Harriet Miers was awaiting confirmation while her record, such as it was, was being scrutinized, for 25 days. During that time the Supreme Court re-opened and began hearing cases, with new Chief Justice Roberts presiding. Justice O'Connor has agreed to stay on the Court until a replacement has been confirmed.

The sometimes disappointing swing vote is still there, helping to decide cases which may effect everyone in the country. In the case of McCREARY COUNTY, KENTUCKY, et al. v. AMERICAN CIVIL LIBERTIES UNION OF KENTUCKY et al, for example, the court ruled thusly:

Souter, J., delivered the opinion of the Court, in which Stevens, O'Connor, Ginsburg, and Breyer, JJ., joined. O'Connor, J., filed a concurring opinion. Scalia, J., filed a dissenting opinion, in which Rehnquist, C. J., and Thomas, J., joined, and in which Kennedy, J., joined as to Parts II and III.

I make that point in order to make this point:

The next nominee has yet to be named, although The President has promised a speedy announcement. After He announces his nominee, there will be a period of time in which the press and the Senate etc, will research as much as they can in order to attempt to determine the nominees judicial philosophy. Then, if the name isn't again withdrawn, The nominee goes before the Senate Judiciary Committee and after that, the Senate itself, for confirmation.

In the meantime, cases are being argued. Cases that may effect our civil liberties.

One of the cases now being heard is the one in which the constitutionality of the state of Oregon's Doctor assisted suicide law is being argued. Depending on how a majority of Justice's rule, People may die.

Because of a possible blunder or a calculated strategy by Bush, Conservatives will now have to wait a little longer for a majority opinion that favors them on the Court.

We can only hope that the next nomination doesn't come too late.


Toad734 said...

In all seriousness what has Bush done to earn your trust?

Liam said...

Mark, why is a swing vote a bad thing? You write as if America is disenfranchised by not having a conservative court. America is almost equally divided between Left and Right and I’ll bet most people would probably class themselves as more ‘moderate’ than hardcore Republican or Democrat.

Putting a committed ‘party member’ on the bench at this point simply steers the court away from representing half the country until at least the next SCOTUS appointment comes around. Having an ‘uncommitted’ Justice on the bench means that the arguments made actually mean something and that both conservative and liberal views have a chance of a fair hearing. That sounds like a court more representative of the American people than having a conservative majority who can be trusted to vote along party lines.

Sheila said...


Well done! That's the American way.

tugboatcapn said...

Except for one problem, people.

When there is ONE swing voter on the Supreme court of the United States, that person is the most powerful person in the country.

I still think we need to expand the Court.

Put twenty Justices on it.
One Hundred and Fifty.
Of every concievable political Ideaology, Religious belief, Race, Gender, However you want to classify people.

That power base needs to be diluted.
There is no reason for the Civil Liberties of the whole population to rest on the opinion of one person, no matter what they believe.
That is TOO MUCH POWER for one person to hold.

Mark said...

Liam, Read it again. I didn't say a swing vote is a bad thing. I said sometimes O'Connor's swing votes were disappointing to the Conservatives.

O'Connor was a Republican appointee but she hasn't voted the way that Conservatives had expected or hoped she would.

Deb said...

That was the problem with Meirs; she was a potential loose cannon. We NEED one of those; shake up the justice system! Shake up the whole damn country, it's long overdue.
I got here through Pam, she has impeccable taste; I shall return often!

Liam said...

Mark, it’s true; you didn’t say a swing vote was a bad thing, but the final third of the post reads to me as if, until there is a conservative majority on the court, it will be making ‘wrong’ decisions. I guess that just reflects your political ideology, rather than the ideology of the country at large.

Mark and Tug, I’d say that the thing that is wrong with the whole Supreme Court business is not that Sandra Day O’Connor didn’t vote along conservative lines, it’s that people expected her to in the first place. People’s civil liberties shouldn’t be in the hands of one swing voter, they should be in the hands of nine learned and impartial judges, free of any party affiliation – that’s the reason why appointment to the court is for life.

If anything should be changed, I think it is the confirmation process rather than the court itself. Less attention should be paid to the candidate’s political leanings and more to their ability to make legally sound judgements based on the facts of a case. That is, after all, what the judges are supposed to be doing; interpreting the law, not making it. (If a justice is legislating from the bench, then impeach them and appoint someone who will do the job properly.)

Mark said...

Liam. "Less attention should be paid to the candidate’s political leanings and more to their ability to make legally sound judgements based on the facts of a case. That is, after all, what the judges are supposed to be doing; interpreting the law, not making it."

That's exactly right. But that's what the current court has been doing, which is why we Conservatives want to make sure a strict constructionist is appointed.

Liam said...

Could you define 'constructionist' in this context? It's not a term I'm familiar with. Thanks, L.

Mike's America said...


Just to complete our exchange at Mike's America:

You mentioned David Frum, the able White House speech writer. I was not aware until Saturday, that he had posted opposition to Miers within an hour of the announcement.

It's entirely possible that his opposition is founded as much on personality and/or institutional differences than on some vague principle or qualifications.

Every speech Frum wrote would have gone first to the the White House Secreatariat, which Miers ran before she became Deputy Chief of Staff for Policy. And of course it would also have gone to the White House Counsels' Office for approval as well.

From my own brief time in the White House Political Office under Reagan, I recall a similar staffing process whereby we wished to have the President make a stronger political statement regarding our opponents (who happened to be Democrats in those days, not fellow conservatives) and were over-ruled by the White House Counsel.

Frum was one of those who sowed the seeds for what eventually became the cabal of Barabas conservatives shouting down Miers nomination before it came to a hearing, much less a vote.

I was one of the first to break the news of Miers nomination at Confirm Them:

If you go back and read that comment stream, you will see that the "regulars" at Confirm Them immediately pounced on Miers and never gave her a chance to have that fair hearing which they had previously demanded for other nominees.

You may also recall that many of us were routinely criticized for trusting President Bush, even though that trust was earned based on his record of previous nominations to the courts.

Yet, most conservatives voted for President Bush, not foreign-born David Frum. Should we have trusted Frum or Kristol over our elected President?

P.S. If you are looking for another Scalia, start shopping for a "textualist" as that is the term he uses to describe himself.

Scalia was a member of my squash club in DC... remind me sometime, off the record, to tell you a story about him.