Comments on: Commentary: What’s next?

By: Michael Meckler

Michael Meckler — Fri, 28 Oct 2005 07:30:28 +0000

According to John Fund earlier this week in the Wall Street Journal, the real reason Sixth Circuit Judge Alice Batchelder was not chosen earlier had to do with Ohio politics. Now Batchelder is reportedly being reconsidered for the Supreme Court. For those interest, the details of the rivalry between RNC co-chair Jo Ann Davidson and Batchelder's husband, Bill, may be found here:

http://red-state.com/1005/102805.html

By: Swan

Swan — Fri, 28 Oct 2005 02:17:31 +0000

Of course the president is week. If he had the political capital to get her on the court, he would have gotten her there. But he doesn’t have the political capital, and so he didn’t accomplish his goal.

Viewed against the background of his failure to move his Social Security agenda, his failure to secure Iraq, his failure to respond nearly adequately to Katrina, and his failure to keep his homeboys out of the pokey, it’s no wonder that his GOP colleagues have come to understand that Bush worship is something for the rank-and-file GOP voter. To the GOP movers and shakers, party discipline has become a liability, and the president has revealed himself as just George who can make a really bad decision as often as anybody. I have no doubt that many national politicians, Republican and Democrat, are now regretting that they didn’t act out and speak out against Bush much sooner, or more strongly than they had– while others are simply consoling themselves that at the time, they just did what seemed wise relative to how things looked like they were going with this administration over the past months and years.

What the Democrat national politicians need to do now is step into this hole in a really big way, with something affirmative and positive. They have to demand something that makes perfect sense, but that the GOP administration will certainly not budge on. The Democrats on the Hill should unite in asking that the president request Justice O’Connor to stay on the bench longer, or, that all documents pertinent to any future nominee requested by the senate be promptly turned over. The Democrats should start saying that the president is turning the nomination process into a mockery. And, they should make sure that people understand that the real story here could have been the naughtiness that Miers may have been involved in. Who’s to say that’s not why the nomination was withdrawn? Why allow all the spin to stand untested?

By: bobdevo

bobdevo — Thu, 27 Oct 2005 19:03:16 +0000

Seems to me if the Democrats wish to have some sport at this point, Harry Reid should rear up and inform the White House that NO nominee from a President whose decison making capacity has been so called into question (by a skein of bad decisions from yellowcake to invading Iraq to appointing Brownie at FEMA to Miers)is acceptable, and Democrats will filibuster ALL nominees. Take the issue to the public and call the Republicans bluff on the nuclear option. With the Democrats poised to take over the Senate in 06 (thanks to Mssrs. Bush, Rumsfeld, Rove, Libby, Cheney, DeLay and Frist), voting to abolish the filibuster could be a very risky proposition for Republicans with an eye to the future. Sandra Day can stay on the bench until a grownup occupies the Oval Office.

By: Aaron Ostrovsky

Aaron Ostrovsky — Thu, 27 Oct 2005 18:28:54 +0000

As to Pidot’s comment:
I’m not sure the left is up to Nominee Attack III yet – I think this next one would be II. Documentary demands from the left? Well maybe, if you ignore the conservatives on the SJC – that seems like a tall order for any spin doc. but agreed, never underestimate the WH’s cunning…

By: Kevin Murphy

Kevin Murphy — Thu, 27 Oct 2005 18:26:32 +0000

The problem with that analysis is that it assumes that there was significant Republican support for Miers. At best, there was lukewarm support for the President’s perogatives.

Bush can choose to unite the party with a solid (female) conservative, or he can stubbornly persist with someone like Gonzales. His worst possible move would be to choose someone with a strong Christian agenda who was weak (or wrong) on the issues that other Republicans care about. That would split the party badly, if not irrevocably.

On the other hand, if he “caves in” to the majority of his party (small government conservatives) and picks someone from that tradition (e.g. JRB), he can have a united party at his back. Remember that the reason these people tolerated Bush’s straying from the “true path”, and voted in droves last time, was to pack the Court with conservatives. He renigged once, at great cost. Twice would be fatal.

By: Scipio

Scipio — Thu, 27 Oct 2005 18:08:30 +0000

Judge McConnell would be a good nominee. Putting up a CINO or a cypher would be a disaster.

By: grl

grl — Thu, 27 Oct 2005 17:58:02 +0000

This commentary is spin — very interesting spin, but spin nonetheless.
What is interesting is that beneath the sophistication is the subtext: “Bush is weak.” “Bush needs to pick someone who is ‘not ideological.’” “Bush better not offend the big, powerful (Democratic and moderate Republican) senators.”
Bush has nothing to gain by kissing up to those who wish him ill and want to do him harm, and nothing to lose with those who matter to him and felt betrayed by the Miers nomination by picking an “ideologue,” like, say, Janice Rogers Brown.
The worse that could happen is that the nomination could get rejected after a bruising fight.
There is plenty of precedent for a President having his initial nominee bounced and then picking someone even more ideological.

By: cjd

cjd — Thu, 27 Oct 2005 16:26:12 +0000

Semi-procedural question: will SOC be writing any opinions this term? I assume that she wouldn’t have up until now, out of concern that she might not still be on the court when the decision is handed down and all of her (clerks’) work would be wasted. But now, with her replacement likely not on the Court before next year, will Chief Justice Roberts start assigning her opinions if she is in the majority?

This could matter in a number of cases up for this term, most obviously in Ayotte and possibly the FAIR case. Does Harriet Miers going down mean that we’re going to get a restatement of Casey’s veneration of stare decisis? Could Justice O’Conner serve long enough to give us another branch for the Lemon test? And, on another note, what happens to SOC’s clerks?

By: Casper

Casper — Thu, 27 Oct 2005 15:40:03 +0000

I wonder whether Justice O’Connor might now decide to make her retirement effective on a date certain (sooner rather than later), instead of “effective on confirmation of successor.” Surely she doesn’t relish either (a) staying indefinitely, or (b) sitting for November and December arguments only to find that someone is confirmed in mid-January thus making that effort on her part (almost completely, at least) pointless. Any thoughts?

By: Chaz MarteL 732

Chaz MarteL 732 — Thu, 27 Oct 2005 15:33:47 +0000

Nominate a true conservative and let the ideological battle royale ensue. It’d be good for everybody. These are not times for pussy-footing around with issues of historical import.

By: Hoyapaul

Hoyapaul — Thu, 27 Oct 2005 15:29:18 +0000

Flip: I’m not sure what you mean by “undue combativeness”, and whether you attribute this to the Democrats with the Miers nomination. Because it is clear that it was the right wing that pressed “zealous documentary demands” on the White House to ensure that Miers would pass their abortion litmus test. They didn’t get these documents, instead finding a 1993 speech by Miers indicating some sympathy for rights to an abortion, so they sunk the nomination.

It also seems clear that the Administration IS weakened, and considerably so. The Miers nomination in particular split open the Republican moderate and extreme wings to the point where one side will not give in to the other. I’m at a loss to name a nominee that would please everyone. Perhaps a respected minimalist like Judge Michael McConnell (though he has a long paper trail).

By: Trespass

Trespass — Thu, 27 Oct 2005 15:00:37 +0000

How about former SG Ted Olson? He is close to the administration and WH but not so close as Miers. Plus her age lessens the previous skepticism of his age. And he has good credentials on the War on terror, which will be of paramount concern to the President. I also doubt either the Left or the right in the Senate can make much of a complaint about him.

By: Flip Pidot

Flip Pidot — Thu, 27 Oct 2005 14:50:14 +0000

I tend to disagree that the President is less flexible now. If the past is any guide, this administration’s strategic cunning is not to be misunderestimated. That’s not to say Miers was a sacrificial lamb, but I wouldn’t be surprised if this eventuality were at least considered and weighed. Assuming a mainstream follow-up nomination, just about every Republican Senator is likely getting ready to bear hug him or her, and the left is left in a position to decide whether to launch Nominee Attack III or resist undue combativeness, given that it was Harry Reid’s own endorsee that they just helped shoo away with their zealous documentary demands. At least that’s how I’d be looking to sell it, if I were a savvy White House strategist whose legal distractions finally seem to be lifting…