Bork: Not Miers

(Can't get enough of this legal/political soap opera!)

Judge Robert Bork—he whose name has become a verb in Senate Supreme Court hearing lore--is just as angry about the Harriet Miers nomination as most of the rest of the legal and/or conservative luminaries of this country.

TUCKER CARLSON, MSNBC HOST: Are you impressed by the president’s choice of Harriet Miers?

JUDGE ROBERT BORK, FORMER SUPREME COURT NOMINEE: Not a bit. I think it’s a disaster on every level.

CARLSON: Why? Explain the levels on which it’s a disaster.

BORK: Well, the first one is, that this is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in a way: it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked. And I think one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.

(Emphasis mine.)

After what I found out about the Federalist Society and Judge Bork’s role in its creation, his opinion of the Miers nomination is no surprise. However, I hope that Judge Bork will come out and express himself as to who is slapping him and his Federalist Society cohorts in the face. Hint: it isn’t President Bush.

Leaving aside his speculation about Ms. Miers' legal talent, surely Judge Bork remembers his own…ahem…borking. If the last part of Judge Bork’s statement is truly the message sent to wannabe Supreme Court justices, then who is the sender of that message? If a climate has been created in which any lawyer who dreams of sitting on the High Court some day has to be an automaton with no known opinions, emotions or feelings—an android—then who fostered that climate?

(BTW, I hope all of you blogging lawyers are content with your present station in life as far as your legal careers go.)

I mean come on. Before the age of four-year-old Jack Roberts was well-known, opponents of his father’s nomination to the High Court were speculating that both John Roberts and his son were homosexuals; to see if the mere innuendo could help spike the nomination. Because of now-Chief Justice Roberts’ near perfection as a candidate, that pathetic implication was the best that any opponents could muster. But that’s how ugly and ridiculous the atmosphere surrounding these appointments has become--at least for open, hardcore conservatives--as Judge Bork well knows. But interestingly enough, as the judge and many others have pointed out, the public still doesn’t know Chief Justice Roberts’ views on the burning legal issues of the day (as it should be). Chief Justice Roberts walked in on sheer and demonstrable talent. That doesn't seem to be a strong factor for Ms. Miers, though Bill Dyer/Beldar researches and makes the case for the excellence of Ms. Miers’ accomplishments.

Understandably, everyone wants ‘paper’ on Miers and that which she does have is deemed unacceptable to a certain segment of observers, especially as stacked up against that of the available talent. But if the president picked a Harriet Miers when he could have picked a Priscilla Owen, most observers shouldn’t have to ask themselves why that is so.

Outside of the Roberts hearings, these federal court (non-)confirmation hearings are becoming a repetitive set of quagmires and people seem to have forgotten this. (Strange. Memories seem short and patterns are ignored among the high priesthood of professional punditry. You wonder how they got through school.) Recall that it was agreed upon by the infamous Gang of Fourteen senators that the first SC nominee would not be filibustered. Was a second nominee a part of that agreement?

Another part of the agreement brokered by the Gang was to stop the four-year long filibustering of Judge Owen’s nomination to the Federal Appeals Court (and two others) and prevent the filibustering of the Roberts nomination. Recall that Senate Minority Leader Harry Reid came straight out and told Senate Majority Leader Bill Frist that the Democrats would filibuster Owen if she were the president’s choice to replace Justice Sandra O’Connor.

Owen, [Janice Rogers] Brown and [William] Pryor were among 10 federal appeals court nominees blocked by Democrats during Bush's first term with a procedural hurdle known as a filibuster.
The three were confirmed this year as part of a bipartisan truce that cleared some of Bush's most conservative nominees for Senate votes while preserving the right of Democrats to filibuster -- but only under "extraordinary circumstances."

Senate Democratic leader Harry Reid and Sen. Patrick Leahy of Vermont, the top Democrat on the Judiciary Committee, wrote Bush that nominating to the Supreme Court any of those previously blocked "would represent an unnecessary provocation and would be met by substantial opposition."

“Extraordinary Circumstances” means, of course, the nomination of anyone whose opinions can be construed as so conservative that the balance of the court will be shifted rightward. (Addendum: no one on either side seems to care about whether a candidate knows how to get to a decision properly; only that they get to the "correct" decision.)

With an eighteen-year pattern of behavior by the Senate Democrats, a promise of same from them, and a GOP majority that allegedly doesn’t have the stones want to fight, one wonders why anyone is surprised that President Bush picked someone who appears to be a cipher.

So what should we—the People—do about it? I’m a Californian. What are you folks with Republican or center Democrat senators going to do about it?

(Thanks to Memeorandum)

EXTRA: Could you just imagine the bloody mess caused by cranial detonation if a non-lawyer were nominated to the Supreme Court?

UPDATE: Half the Senate Republicans don't know if they will vote to confirm Harriet Miers.

Nearly half of Senate Republicans [twenty-seven] say they remain unconvinced that Harriet Miers is worthy of being confirmed to the Supreme Court, according to a survey conducted by The Washington Times. [SNIP]

Sen. Sam Brownback, Kansas Republican and a member of the Senate Judiciary Committee, said last week that he is perfectly willing to vote against the nomination if he is not convinced that she will be reliably conservative on the high court. That view has been echoed by his fellow committee member Sen. Tom Coburn, Oklahoma Republican.

If Mr. Brownback and Mr. Coburn joined all Democrats on the committee in opposing Miss Miers, her nomination would fail in committee. However, because it is a nomination for the Supreme Court, it would still go to Senate floor for a vote by the entire chamber -- albeit with a negative committee recommendation.

I still could be wrong.