Politics, Government & Public Policy: October 2005 Archives

Everything I've read this morning about Samuel Alito inclines me to think he'll be an excellent Supreme Court Justice. I'll be updating this post as I come across posts and articles I feel are relevant.

Even his opponents like him.

Alito's conservative stripes are equally evident in criminal law. Lawrence Lustberg, a New Jersey criminal defense lawyer who has known Alito since 1981 and tried cases before him on the Third Circuit, describes him as "an activist conservatist judge" who is tough on crime and narrowly construes prisoners' and criminals' rights. "He's very prosecutorial from the bench. He has looked to be creative in his conservatism, which is, I think, as much a Rehnquist as a Scalia trait," Lustberg says. ...

Off the bench, friends and colleagues describe Alito as quiet and self-effacing with a wry sense of humor. He is a voracious reader with a particular love for biographies and history. With his wife, Martha, he has a son in college and a daughter in high school. "He's mild mannered and generous and family oriented," Lustberg says. "I don't agree with him on many issues, but I have the utmost respect for him. No one can question his intelligence or integrity."

An activist conservative judge with unquestionable intelligence and integrity? Considering that "activist" is in the eye of the beholder these days, that sounds like a pretty strong recommendation to me.

All the judges on the 3rd Circuit Court of Appeals seem to think Judge Alito will make an excellent Justice.

The 14-member court has long been regarded by law professors as more moderate and fact-driven, in contrast to strident ideology found on bitterly divided courts such as the Richmond-based 4th Circuit and San Francisco-based 9th Circuit.

Some of Alito's colleagues say one reason is the modesty and collegiality of Alito.

"The entire court is thrilled with the appointment," said Chief Judge Anthony Scirica, a Reagan appointee. "Whatever quality you think a judge ought to have, whether it's scholarship or an ability to deliberate or fairness or temperance, Sam has each of these to a highest degree."

Michael Barone explains why Sam Alito's Italian-American ancestry makes a filibuster unthinkable.

The good news just keeps on coming! There's not much to say about Miers' withdrawal of her nomination except that the President's explanation is terribly weak.

Bush, after weeks of insisting he did not want Miers to withdraw, blamed the Senate for her demise.

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House _ disclosures that would undermine a president's ability to receive candid counsel," the president said shortly before leaving for Florida to assess hurricane damage.

Just like the Senate demanded for John Roberts! Who would've seen it coming? The real reason the nomination was withdrawn is that the withdrawal is slightly less humiliating for the President than an actual defeat in the Senate.

President Bush is in Los Angeles for a fundraising trip and just about every local news source has been buzzing about the freeway closures his arrival and travel have required (for security purposes).

Bush was due to arrive in Los Angeles later Thursday for a two-day visit that includes a fundraiser in Beverly Hills to be attended by 100 couples, at which the Republican National Committee is expected to raise one million dollars, according to The Los Angeles Times.

Compared to the hundreds of thousands of man-hours lost to freeway closures during rush hour today and tomorrow, I think it would have been far more efficient for the city to simply write a check to the RNC for a million dollars and paid the President to stay away. The traffic he caused isn't doing anything to ingratiate the President or his party with the population of Los Angeles, I can tell you that much. I work in a pretty conservative industry, but many people at work were grumbling about the closed freeways this afternoon before they left for home.

Looks like these people are ready to join the Karl Rove Fan Club!

Rove's wife, Darby, raised the white garage door one morning last week to show journalists outside the million-dollar brick home that the deputy chief of staff, assistant to the president and senior adviser wasn't home. All the interest came on the eve of his testimony Friday before a grand jury investigating who in the White House might have revealed the identity of a CIA operative.

There was no car in the garage. And the stuff left behind turned out not to be much different from what gathers dust inside most American garages.

The inventory, seen from outside:

_Some cardboard file boxes stacked one on top of the other, labeled "Box 6," "Box 4" and what appears to be "Box 7." No sign of boxes 1, 2, 3 and 5.

_What appear to be paint cans stacked alongside a folded, folding chair.

_A rather large wood crate marked "FRAGILE" and painted with arrows indicating which way is up. On top of the crate, two coolers.

_A tall aluminum ladder.

_A snow shovel leaned in front of another cardboard box.

_Wicker baskets inside of wicker baskets on top of a shelf running the length of the rear wall. Transparent plastic storage bins crammed with indiscernible stuff. Another cardboard box.

_In one corner, the rear wheel of a bicycle sticks out, along with what appears to be a helmet.

_Another ladder, this one green, leaning sideways.

Where are boxes 1, 2, 3, and 5?!?! It's time for Congressional hearings! What's in the "FRAGILE" wooden crate? WMDs? Why two ladders? Where has Karl been climbing?!

I'm still not sure how I feel about the "Gang of 14" deal between seven Democrat and seven Republican senators. I initially thought it was a stupid deal for the Republicans because they sacrificed several appellate court nominees and agreed not to eliminate the filibuster in exchange for a rather weak agreement that the filibuster wouldn't be used except in "extreme circumstances". At this point, I don't see how maintaining the filibuster is a win for the Republicans, since demographic trends seem to indicate that they'll hold the Senate for a while. Even if they lose it, the filibuster is antidemocratic and was never envisioned by the framers, and I'm pretty much against the practice on pure principle.

The benefit to the Gang is that their own power is enhanced by forming a cabal of swing votes that must be appeased -- again, I don't see how this benefits democracy. I wonder if the President nominated Miers because the Gang privately shot down more qualified people? Rumors are circulating that Miers wasn't Bush's first choice, but that others on the short list declined to be nominated because they were afraid of the potential confirmation battle. The agreement of the Gang may have dampened enthusiasm for the filibuster in some cases, but it only strengthens the venom that will be injected into any nominate that surpasses the ambiguous threshold of "extremity".

An additional problem with the filibuster is that it shelters the half-dozen unreliable Senate Republicans who won't want to back a conservative nominee. If the Democrats invoke a filibuster the lefty Republicans won't have to cast a vote... unless the "nuclear option" gets put back on the table. Without filibusters, the majority of conservative Republicans could either strong-arm the lefties into compliance or at least force the internal disagreement out into the open.

So, with short-term historical perspective, who has the Gang of 14 deal benefitted most?

Senator Tom Harkin has a no-duh moment when he identifies who will "suffer" from federal budget "cuts" needed to pay for Katrina and Rita aid.

“As usual, the prime targets are the poor and others who rely on federal programs for their health, education, disability, agriculture, and veterans’ benefits,” said Sen. Tom Harkin, D-Iowa, the senior Democrat on the Agriculture Committee.

It shouldn't be a mystery that people who live their lives dependent on public aid will be the ones most affected when that aid is redirected -- and note that spending is redirected and not cut. If you don't want to be dependent on the whims of politics for comfort, provide for yourself. The poor here aren't "targets" any more than the rich are the "targets" of tax cuts -- when taxes are cut, only those who pay taxes will be directly affected, and these days paying taxes is basically the definition of "rich".

I hope the left sees how concerned the right is over the appearance of cronyism with the Miers nomination.

The main complaints cited at the Norquist and Weyrich sessions yesterday, according to several accounts, centered on Miers's lack of track record and the charge of cronyism. "It was very tough and people were very unhappy," said one person who attended. Another said much of the anger resulted from the fact that "everyone prepared to go to the mat" to support a strong, controversial nominee and Miers was a letdown. As a result, a third attendee observed, Gillespie and Mehlman came in for rough treatment: "They got pummeled. I've never seen anything like it."

What will be interesting to see is if the left supports Miers because, despite the appearance of cronyism, she isn't as far right as the nominee conservatives were hoping for.

The 90-minute Norquist session, where Gillespie appeared before 100 activists, was the more fiery encounter, according to participants. Among those speaking out was Jessica Echard, executive director of the Eagle Forum, founded by Phyllis Schlafly. Although she declined to give a full account later because of the meeting ground rules, Echard said in an interview that her group could not for now support Miers: "We feel this is a disappointment in President Bush. If it's going to be a woman, we expected an equal heavyweight to Ruth Bader Ginsburg and her liberal stance, and we did not get that in Miss Miers."

I think the President screwed this one up, and I wouldn't be surprised if the White House is now looking for an excuse to withdraw the nomination. Assuming they vetted Miss Miers properly, they know all the dirt in her background and they may not hesitate to reveal something if they need to create an out and she won't step back on her own.

Michael Greve uses Germany as an example of why proportional representation leads to indecision and gridlock.

Proportional representation--PR--is said to be more democratic, inclusive and respectful of minorities than British-American winner-take-all, first-past-the-post elections. Unfortunately, it does nothing to foster clear majorities capable of effective government.

Germany's system of almost pure PR has consistently produced coalition governments and now, for the first time, a situation in which no party constellation can produce a government with a coherent program for much-needed reforms. Prime Minister Margaret Thatcher's reform of Britain's sclerotic economy wouldn't have been possible with PR and cooperative federalism; nor could one imagine Prime Minister Junichiro Koizumi accomplishing anything similar in Japan.

The more subtle but ultimately more insidious problem is that PR--unless balanced by plebiscitary institutions such as a directly elected, powerful executive--tends to be constitutionally unstable. Instead of institutional checks and balances, PR constitutions resemble temporary peace pacts among contending interests, classes or warlords. The structure is only as stable as the underlying constellation of forces; or it is stabilized by nonpolitical means.

Some people decry America's two-party system for shutting out the "little guy", but the fact is that the primary races within each party serve as a filter to prevent Nazis, Communists, and other sorts of lunatics from attaining national office (as they do in France, Germany, and other PR countries). First-past-the-post elections ensure the creation of a government with a mandate from the majority, which leads to more decisive action, less pandering to fringe groups, and greater stability.

*** This post is being updated throughout the day as I stumble on more commentary. ***

Blah, yeah, I'm frustrated over the President's pick of Harriet Miers. The secondary reason I supported Bush so strongly last year -- after the War on Terror -- was so that he could make some strong, conservative appointments to the Supreme Court. And instead I get, what? Some staffer I've never heard of? The blogs, and even dead-tree media, have been full of brilliant, conservative suggestions, but instead Bush nominates a flack. Great. I could write a bunch more about it, but I pretty much agree with David Frum's assessment.

The Miers nomination, though, is an unforced error. Unlike the Roberts's nomination, which confirmed the previous balance on the Court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades--two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court. Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either.

The Senate would have confirmed Luttig, Alito, or McConnell. It certainly would have confirmed a Senator Mitch McConnell or a Senator Jon Kyl, had the president felt even a little nervous about the ultimate vote.

There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?

Update:
Hugh Hewitt points to a series of posts about Miers by Marvin Olasky that paint her as a conservative Christian.

Miers has been a member of Valley View Christian Church in Dallas for 25 years, where Hecht has been an elder. He calls it a "conservative evangelical church... in the vernacular, fundamentalist, but the media have used that word to tar us." He says she was on the missions committee for ten years, taught children in Sunday School, made coffee, brought donuts: "Nothing she's asked to do in church is beneath her." On abortion, choosing his words carefully for an on-the-record statement, he says "her personal views are consistent with that of evangelical Christians... You can tell a lot about her from her decade of service in a conservative church."

Since I'm looking for good news, maybe I'll find some more. Beldar looks happy enough.

By objective standards, Harriet Miers has been among the few dozen most successful lawyers in private practice in the United States. Filter the Y-chromosome bearers out of that group and you're down to a couple dozen or less. Filter that group for significant public and governmental experience and we're down to a very small handful. And filter that small handful for lawyers in whom George W. Bush already has boundless personal confidence from first-hand experience, and your Venn diagram just has a one-member set left: Harriet Miers. Those are not inappropriate criteria, folks. From an overall viewpoint, using any reasonable criteria, she's qualified enough. But using those particular criteria, she's uniquely qualified.

I've got nothing against her lack of judicial experience -- that's even a plus. Despite all this reasoning about her, though, no one is arguing that she's brilliant and capable of making the great arguments that need to be made to reform our courts.

It also bothers me that Democratic Senators are so enthusiastic.

Senate Minority Leader Harry Reid, a Democrat from Nevada, personally urged Bush to consider Miers, sources say. A senior administration official, asked about the logic of the choice, points to Democratic support and the fact that, as Bush said in introducing her, Miers had been "a pioneer in the field of law"—a woman who was active in the Southern legal community at a time it was dominated by men, becoming the first female president of both the Dallas Bar Association and the State Bar of Texas. Sure enough, Reid issued a statement 90 minutes after Bush announced the pick that began, "I like Harriet Miers." He called her "a trailblazer," unintentionally echoing the language of talking points that had been sent to Republicans. He added that the court "would benefit from the addition of a justice who has real experience as a practicing lawyer."

If Give 'Em Hell Harry is happy, Bush must be doing something wrong.

Paul Deignan thinks we should reject Miers purely out of concern for cronyism, which I think is a strong argument.

Harriet Miers is many things, but she is not a Constitutional scholar, well-seasoned in elective office, or someone who has made many public speeches or presentations on the workings of government. She is an unknown and unproven functionary whose chief virtue is the one virtue that we must reject--a strong tie to a particular chief executive.

Our Constitutional system relies on a separation of powers to ensure mutual accountability through competition for public fidelity. Cronyism, the formation of hidden and undemocratic power relationships, has been the bane of divided government from its inception. When the public cannot see clearly the workings of government the people lose a sure hand in controlling their collective destiny.

Bill Kristol is depressed because replacing O'Connor with Miers doesn't reflect a desire to change the balance of the court.

I'm depressed. Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination--and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.

Ace explains Bush's mistake:

By nominating Roberts as Chief Justice, he made him a replacement for Rehnquist, rather than for Sandra Day O'Connor, as was originally planned. The thing is, Roberts could easily have been confirmed as O'Connor's replacement, and he was more conservative than her (if only by a bit) to boot. That would have allowed Bush a free hand to nominate a strong, unabashed conservative for Rehnquist's spot, as in that case he would have just been swapping one strong conservative for another.

Had he not nominated Roberts for CJ then, he would have replaces a very squishy semi-"conservative" with a more dependable conservative. And then he could have nominated a Scalia-type to replace Rehnquist. Net result: the court moves to the right.

But as it is, he has replaced Rehnquist with someone who is less of a conservative (or so it seems; who knows, really, given what little anyone knows about Roberts' actual judicial philosophy) and is replacing O'Connor with what seems to be an O'Connor clone.

Net result: the court moves slightly to the left.

Roberts was golden. Roberts could not be defeated, even as a swap for the liberalish O'Connor. Roberts was in like a tasseled-loafers Flynn.

Pat Buchanan echos my own thoughts, claiming that the White House is afraid to fight.

Conservative cherish justices and judges who have paper trails. For that means these men and women have articulated and defended their convictions. They have written in magazines and law journals about what is wrong with the courts and how to make it right. They had stood up to the prevailing winds. They have argued for the Constitution as the firm and fixed document the Founding Fathers wrote, not some thing of wax.

A paper trail is the mark of a lawyer, a scholar or a judge who has shared the action and passion of his or her time, taken a stand on the great questions, accepted public abuse for articulating convictions.

Why is a judicial cipher like Harriet Miers to be preferred to a judicial conservative like Edith Jones?

One reason: Because the White House fears nominees “with a paper trail” will be rejected by the Senate, and this White House fears, above all else, losing. So, it has chosen not to fight.

Thomas Lifson looks at the nomination strategically and sees a lot to like.

This president understands small group dynamics in a way that fewif any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.

One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.