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.

Comments

[Tully]

It's downright surreal watching Miers get "borked" by Bork and the right. The argument against her is being presented as a "qualifications" argument, that she doesn't have the elitist credentials from the right law school, etc. What's surreal is that this argument is coming from those who have spent the last couple of decades railing about how Ivory Tower liberal intellectuals have let their fantastic legal theorizing drag the law farther and farther away from reality, with no consideration for the real-world effects of their imaginative constructions.

So what do they do when the nominee isn't on their own "club" list? That's right, argue that she's not sufficiently Ivory Tower intellectual or elitist! Their real argument is that they worked hard to get Bush into office, so he "owes" them the nomination of a fire-breathing constructionist (from their pre-determined list) who will take on the liberals in a cage death match and vote their way on their issues. They WANT a confirmation fight, even though they'd likely lose it in the Senate. The "credentials and qualifications" argument is hypocritical cover for the real credentials desired--a solid track record of having the correct pre-decided principles and positions.

Miers might or might not be a good Justice. She certainly has something that the Court currently lacks--30 years of experience in the trenches as a commercial litigator in the real world, representing real clients. That's about 28+ years more than the rest of the court combined. And so far she has one of the two actual "qualifications" for the job--the nomination. The other one is the confirmation by the Senate.

As WizBang points out and as I pointed out myself elsewhere last week, the Constitution lays out requirements for all the elective offices, but doesn't even require that a Justice be a citizen, much less an attorney. Maybe they figured some diversity on the Court was a good thing.

[V the K]

The thing about Miers isn't about Miers. I'm sure she's a fine person and a competent lawyer. The thing that has some of us p'o'ed is how many much better people --- McConnell, Estrada, Rogers-Brown, Jones, Clement just to name five --- were passed over so Bush could put a crony on the Court. Does anybody seriously believe that Harriet Miers is absolutely, no doubt, the finest legal mind Bush could have possible selected? Frankly, I think he's just trying to dodge a fight.

[justin]

I think that the term "Borking" has gotten a bad name, or is misunderstood. Bork was and still is WAY outside of the mainstream, even for conservatives. The Democrats were right to fight his nomination tooth and nail. But, what wasn't right were the personal attacks on him (examining video store rentals etc.).

Look, if a president is going to nominate someone ideologicically extreme, the American people have a right to know that. A big reason that judges have to "hide" their views is because Republicans have been trying to nominate canditates with views that most Americans would find unacceptable. If that weren't the case, why doesn't a nominee just come out and say--"Yes, I believe Roe was wrongly decided and I would overturn it, I believe there is no right to privacy in the Constitution, I believe that the Federal government has no right to enforce labor standards or civil rights legislation etc."?

[Tully]

The thing that has some of us p'o'ed is how many much better people --- McConnell, Estrada, Rogers-Brown, Jones, Clement just to name five --- were passed over so Bush could put a crony on the Court. Does anybody seriously believe that Harriet Miers is absolutely, no doubt, the finest legal mind Bush could have possible selected?

I keep looking through the Constitution, and I don't find "finest legal mind" as a job requirement. Nor do I find "on our ideological short list." See above, & QED. You're PO'd because Miers isn't on the pre-approved club roster. The objection is political, not substantive. You say so yourself. "The thing about Miers isn't about Miers." That doesn't stop the "crony" slur from hopping right in there, though. (I didn't find "nominee must be a stranger to the President" as a requirement either. Come to think of it, that's how we got Souter.)

The choice of whom to nominate is Bush's, the decision to confirm or not belongs collectively to the Senate. All else is chatter. The "froth factor" is that the ideological right tried to pull the puppet strings, but the puppet didn't dance. Darn puppet! Doesn't it know it's property?

The rank-and-file GOP base doesn't seem perturbed at all about the nomination. Only those who were salivating at the thought of getting one of their "short list" nominated. Is Bush trying to avoid a fight? Going into the recess before mid-term elections? Duh, d'ya think? Maybe even avoiding a fight that he knows in advance he would lose?

[V the K]

I keep looking through the Constitution, and I don't find "finest legal mind" as a job requirement

Well, forgive me for having a preference that the best possible constitutional minds should serve on the Supreme Court. Maybe I take the job of preserving the Constitution a bit more seriously than others do.

[justin]

You're PO'd because Miers isn't on the pre-approved club roster. The objection is political, not substantive. You say so yourself.

Tully, I disagree, it is all about substance. Bush said he would nominate someone in the mold of Scalia/Thomas to the Court, but failed to live up to the promise and instead nominated someone whose only qualification is that Bush trusts her. I would be pissed too if I was expecting another Scalia and instead got Miers. I'm not saying she is not going to be a good or even great justice, but it is pretty unlikely that she will be another Scalia--you don't just turn into a Federalist Society strict constructionist at the age of 60.

As someone who thinks the strict constructionist view of the Constitution is ridiculous and dangerous, I couldn't be happier that Bush nominated Miers.

[Dan]

"What are you folks with Republican or center Democrat senators going to do about it?"

Not a thing. Because there's nothing like being represented by Senator McCain to make you feel like you aren't represented by anyone at all.

[Tully]

Uh huh, V. The only ones qualified are those on your short list. Got it. Only the truly elite need apply--the "Men In Black" standard. Best of the best of the best, SIR! If you really want the "best possible constitutional minds," may I presume you'd be ecstatic had Bush nominated Larry Tribe or Alan Dershowitz or Elena Kagan? Hmmm?

I suspect not. I suspect that what you really mean is you want a completely known quantity that represents YOUR beliefs. Not the best mind, but the "biggest gun" you know of that agrees with your own agenda. And you have a list of same, and Miers is not on it, so she is automatically "unqualified," regardless of credentials.

Justin, "only" qualification? So heading a state bar association, chairing the ABA Journal's editorial board, the ABA Multi-Jurisdictional Practice Board, being White House Counsel during wartime, heading a major law firm, and acquiring three decades of real-world experience in a field of law that's utterly lacking in representation on the Court is all immaterial? Why?

(I'm just badgering you because it sounds like you're echoing the arguments of the right. Yep, they're annoyed. But they're annoyed that the nominee isn't their choice. They're annoyed because the Prez didn't dance when they pulled the string, and pick a name off their short list.)

Justin, "only" qualification? So heading a state bar association, chairing the ABA Journal's editorial board, the ABA Multi-Jurisdictional Practice Board, being White House Counsel during wartime, heading a major law firm, and acquiring three decades of real-world experience in a field of law that's utterly lacking in representation on the Court is all immaterial? Why?

Lots and lots of lawyers have similar qualifications, and they are fairly middle-of-the-road credentials--credentials suited to head up a government agency or something. The standard you are suggesting is that every competent lawyer that has been in practice for some time is qualified to sit on the Supreme Court--you may be correct--possibly real world lawyers should be appointed to ths Court. But, I think it's clear that Bush only appointed her because he knows her well, and not because she has any special qualification to be on the Supreme Court.

(I'm just badgering you because it sounds like you're echoing the arguments of the right. Yep, they're annoyed. But they're annoyed that the nominee isn't their choice. They're annoyed because the Prez didn't dance when they pulled the string, and pick a name off their short list.)

You're correct, I am echoing the arguments of the right. My problem with Miers isn't her credentials, it's the fact that she is too close to Bush and will show too much deference to the Executive Branch. But, you can understand why the right is upset, no? Bush repeatedly said that he wanted to appoint a Scalia-type justice, but he didn't. That branch of conservatism has been working for 25 years to change the direction of the Court, and they thought they had an ally in Bush.

But, overall, I'm glad he appointed her rather than Owens or Brown. Miers isn't an idealogue and I doubt she will vote to radically alter the Court when given the opportunity, but that is just a hunch based on nothing other than speculation (or maybe just wishful thinking).

[Tully]

I understand quite well why the right is upset. I just think most of their ensuing objections are a wee bit hypocritical. They're trying to hide ideological objections (valid enough in their own way) inside other arguments.

If Bush had nominated Owen or Brown, he'd probably be facing a Senate fight he couldn't win. At least not without the kind of floor battle and filibuster fight that would actively hurt the party going into the mid-terms. Especially if push came to shove and we revisited the filibuster rule. At which point the Gang of 14 could hand the GOP hard-liners a really nasty loss.

I don't know that Miers is a good or bad nominee. I do know that her nomination looks like some fairly sharp political judo, a sidestep to avoid an unwinnable or terribly damaging battle. Wingers don't tend to have a long-term strategic view, though. They want to fight now, whether it's a good idea or not. But the fact is that the support for a staunch right-wing nominee does not appear to be there in the Senate, not at filibuster-breaking strength.

The GOP is not a monolith. The wingers want to act as if it is--as if they "own" the party, as if there are no other views in the GOP. They want to go full-bore on their own agenda. Doing so would hurt the party in '06, and wouldn't (IMH&AO) give them a win, and could cost the GOP dearly at the polls.

[Joatmoaf]

I really didn`t want to get involved with this subject because it bores me to tears, but I did anyway.

I basically followed the lead you set in the other post and wrote one Here.

The basic premis is that "it's all part of The Plan"

Miers is cannon fodder so the media, special interest, and the senate can get it out of their systems.
After the circus is over the public will be in no mood for any more such nonsense and Bushs' 2nd choice will pass.

[V the K]

Tully, do you have any argumentative strategy other than setting up straw men? It's fascinating how your 'refutation' of my argument has little or nothing to do with what I actually argued.

[V the K]

By the way, Tully, dictionary.com defines crony as "A longtime close friend or companion." You must have a very sad, lonely life to consider that a 'slur.'

[Tully]

V, if you think there's a straw man up there addressed to you, point it out. If you think my response is not applicable, or not on point, say why. Be specific.

Are you arguing that Larry Tribe and Elena Kagan and Alan Dershowitz aren't "fine constitutional minds?" When you say "better" people, exactly what do you mean?

I'm positive there are obviously better people, if the person picking them is allowed to define the "qualifications" and set the criteria. I'm pretty sure that my list of obviously better people would differ from yours. But there are NO defined "qualifications" for being a Justice, other than a vacancy, the will of the President, and the discretion of the Senate. Your opinion and mine are irrelevant as to "qualifications."

My point is that ideological objections are being disguised as purportedly substantive ones. If that's not the case, what would be wrong with Bush nominating one of the three Constitutional authorities cited above?

My other point is that the uproar isn't over Miers' judicial philosophy, because we don't know what it is yet. The uproar is over her not being on the Ordained List of the Chosen. The right is upset that the puppet didn't dance on cue. Maybe the problem is that it's not really a puppet.

And yes, if "crony" is not being used in a pejorative sense, it's not an objection at all. In which case, why mention it?

[V the K]

All I said was that there were better choices than Miers, and from that, you set up this whole straw dog argument that I only approved of people from some imaginary ideological short list serving on the court, and then you further went on to make a bunch of political assertions that had nothing to do with my point.

And crony is a perfectly accurate way to describe Miers, so why not mention it? It was you who said that 'crony' was a slur. What's the matter, don't you read your own posts?

[Tully]

Bovine scatology, VtK. Anyone desiring can go back upthread and see that I made my observations about the "better qualified" argument before you ever spoke up, so I could hardly have invented it to straw-man you. If anything, it's the other way around. Your original reply:

The thing that has some of us p'o'ed is how many much better people --- McConnell, Estrada, Rogers-Brown, Jones, Clement just to name five --- were passed over so Bush could put a crony on the Court. Does anybody seriously believe that Harriet Miers is absolutely, no doubt, the finest legal mind Bush could have possible selected?

Which supported what I'd already said. Anyone desiring can follow it from there. And you still haven't answered--if you want the "finest Constitutional minds" on the court, what would be wrong with Tribe, Kagan, or Dershowitz? Or would answering that question prove my point about ideology, and the "short list"?

[Tully]

Additionally, VtK, observations made in reply or discussion with others [Justin] are irrelevant to your own feelings of self-importance. It ain't all about you. If you have arguments with posts replying to others, you should address them on the substance.

[M. Simon]

Bork?

The Judge who believes in legislating from the bench? i.e. The IXth Amendment is an ink blot and unenforceable?

I'd like to hear more about his theory of unenforceable rights. It ought to be as convoluted as a liberal's explanation of the Commerece Clause.

[M. Simon]

I might go with Tribe.

He will change his mind if reason dictates.

i.e. The Right to Arms is an individual right.

[M. Simon]

Tully,

Brown is easy. The Senate already said she was unobjectionable.

How much more ammunition than that do you need?

[Tully]

The Gang of 14 said Brown was unobjectionable for the seat she now has, under the truce conditions set forth in the Gang of 14's agreement. Big difference between that and this, given you're talking about the good will of a cross-partisan political coalition coming up on elections.

Miers wouldn't be my pick either. Nor would Tribe. The "best" pick from my POV is not an activist of any sort, and Tribe is an activist. If there were another John Roberts handy I'd be smiling. It's mostly the hypocrisy in the protests that I object to. Miers isn't being pilloried because she's underqualified. She's being pilloried because she's an unknown quantity to the objectors, and not on the list they think they were promised. They remember Souter. If they just came out and were honest about the nature of their protests, I'd have no problem with 'em. I might still disagree, but not with disdain.

The religious right, of course, would be happy with extra-Constitutional judicial activism if it came down on THEIR side. I take all objections from that quarter with a wheelbarrow full of salt.

I wonder how many of those "short list" candidates indicated they did not want to go through the motions to get their butts kicked in a losing floor fight. And I note that Stevens is 85.

[M. Simon]

Tully,

From what I have read about Miers she has made it her life's work to be an unknown quantity. So I'm asking. What does she have to hide?

In any case I'd love to hear from the Senate why JR Brown is qualified to be an Appelate Judge and not a Supreme Court Judge.

Just the entertainment value alone would be worth the price of admission.

I have also heard Miers has trouble making decisions. She is an "on the one hand... and on the other hand..." type of lawyer. Nothing wrong with that when the client must make a decisiion. OTOH it is a judges job to decide.

From what I can tell, those on the right who object to Miers almost universally find Brown on their short list.

Republicans didn't get in the trenches to select a nominee who gets as much praise from the left as from the right. It is unseemly.

OTOH Bush says she passed the religion test. Although it seems she needs tutoring in Constitutional Law. A real confidence builder that.

[M. Simon]

JR Brown is in the Thomas mold. A libertaian of sorts.

Yet the theocons like Thomas and Brown. Their support for Miers is not as strong as their support for Roberts.

You would think that with Bush propounding her theocon credentials that she should be getting more support than Roberts from that quarter.

Bush thought the theos wanted a Judge with an agenda. It seems they prefer a judge with a philosophy.

In plain old sailor talk: Bush has screwed the pooch.

[baldilocks]

M. Simon: That idea has been rolling around in my head for a couple of days. I'll bring it up in a post.

[Tully]

In any case I'd love to hear from the Senate why JR Brown is qualified to be an Appelate Judge and not a Supreme Court Judge....Just the entertainment value alone would be worth the price of admission.

No argument there, M.Simon. Me too. This one's been worthy of popcorn and junior mints from the git-go. Making it a double or triple feature would be amusing, especially if we could sneak a cooler of beer in to the cheap seats. But I doubt that either party has the stomach for it with mid-terms coming around.

I wouldn't have any idea what Miers has to hide, but her record doesn't indicate she's been hiding. It indicates she's been working hard for her clients in the real world. There's an unhealthy amount of egotistical self-promotion involved with some of those short-listers, IMHO. My reports yeserday from Hill Rats were that some of them asked to NOT be considered, with Owen and Brown in particular being prominently mentioned. No confirmations on that, but it wouldn't be a surprise.

None of which challenges or changes my central point, the hypocrisy of using one form of objection as a mask for another. Most of the objectors couldn't care less about Miers' academic/judicial qualifications, it's the lack of an iron-clad track record matching their ideological "requirements" that upsets them. That, and the anger expressed that the puppet didn't dance when the string was pulled.