Category Archives: Supreme Court

Alito? Boo!

Posted on by

I’m sorry about the page display problem. The site looks fine in Firefox, but is scrambled up in Internet Explorer. I’ll try to get it fixed today. If you can’t wait, though, download Firefox (free).

Anyway–Reuters is reporting that Bush is going to nominate U.S. federal appeals court judge Samuel Alito to replace Sandra Day O’Connor on the Supreme Court. RedState is thrilled. Therefore, be very afraid.

Here’s the scoop from Law.com:

In ACLU v. Schundler, Alito wrote the majority opinion holding that a city’s holiday display that included a créche and a menorah did not violate the establishment clause of the First Amendment because it also included secular symbols such as Frosty the Snowman and a banner promoting racial diversity.

On abortion, Alito was the lone dissenter in Planned Parenthood v. Casey, in which the 3rd Circuit struck down a Pennsylvania law that required women seeking abortions to inform their husbands.

Alito argued that the Pennsylvania law’s restrictions should have been upheld, saying “the Pennsylvania Legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”

In other words, husbands can veto a woman’s decision to terminate a pregnancy. We’re just cows, after all.

The case went on to the Supreme Court, resulting in a 6-3 decision that reaffirmed Roe v. Wade and struck down the spousal notification provision of the law. But late Chief Justice William Rehnquist, in his dissent, quoted Alito’s underlying dissent and said he agreed with his reasoning.

Other Alito rulings have made it easier for employers to practice race and sex discriminate. What a guy. No wonder the Right loves him.

Think Progress has more.

Update: It’s official — Alito is the choice. We could have a fight on our hands, says CNN:

Senate Minority Leader Harry Reid — a Nevada Democrat who had recommended Miers — said Sunday he feared Bush would “try to placate the right wing” with his next nominee, “and that’s a mistake.”

“If he wants to divert attention … he can send us someone who’s going to cause a lot of problems,” Reid told CNN, saying the “radical right wing” was “pushing all his buttons, and he may just go along.”

Reid said the choice of Alito “would create a lot of problems.”

“That is not one of the names that I’ve suggested to the president,” he said. “In fact, I’ve done the opposite.”

At least, if the Dems put up a fight, righties can no longer argue that the president’s nominee automatically deserves a vote in the Senate. Harriet Miers never got one.

SCOTUS, version 2.5

Posted on by

The Washington Post says Bush is “poised” to make another Supreme Court nomination tomorrow. Peter Baker writes,

Judging by the names the White House floated by political allies in recent days, Bush seems ready to pick a candidate with a long track record of conservative jurisprudence — one who would mollify the Republican base, whose opposition to Miers’s nomination helped scuttle her chances. Several GOP strategists said the most likely choice seemed to be federal appeals judge Samuel A. Alito Jr., with judges J. Michael Luttig and Alice M. Batchelder also in the running.

Any of the three would draw support from many conservative activists, lawyers and columnists who vigorously attacked Miers as an underqualified presidential crony. At the same time, the three have years of court rulings that liberals could use against them. Senate Minority Leader Harry M. Reid (D-Nev.) said yesterday that he has already warned the White House that nominating Alito — who is often compared to Justice Antonin Scalia — would “create a lot of problems.”

Concerned Harpies Women for America have let it be known they really like Alito and Luttig. Frightening.

Home Alone

Posted on by

Via Kos, we learn that the Miers nomination was withdrawn after GOP senators privately told Andy Card that she wouldn’t be confirmed. For once, Bush must have listened.

Actually, that’s twice, and in two days. Yesterday he caved on Davis-Bacon after Andy Card talked to “a caucus of pro-labor Republicans.” Karl Rove, I assume, is huddled with his lawyers.

Most of us concluded the Miers withdrawal was timed to distract attention away from possible indictments of White House officials, but Dan Froomkin has another thought–the withdrawal was timed to be overshadowed by indictments of White House officials. He writes,

As Candy Crowley suggested on CNN, if there are indeed indictments tomorrow, the Miers withdrawal will be quickly forgotten. That wipes the slate clean, more or less, and gives President Bush an opportunity to pivot away from the leak scandal with a new Supreme Court nomination sometime in the next week or two.

CNN’s Jeff Greenfield also noted that the Miers withdrawal headlines in tomorrow’s papers will be a nice gift to Bush’s conservative base — on the very day indictments presumably come down and Bush really needs his most ardent supporters firmly in his court.

News media is brimming with speculation about what Bush will do next. Will he fight the indictments? Will the next nominee to replace Sandra Day O’Connor be a clone of Jabba the Hutt? Or will he move more cautiously if he doesn’t have Karl Rove whispering in his ear? Experience suggests the former, but the latter wouldn’t surprise me. At his core, Bush is a weenie. He can act boldly when he knows his gang of toughs are backing him up. But his inner circle is shrinking down to the his most obsequious courtiers–people who flatter Dear Leader’s ego but may not be much use in a fight.

Paul Begala writes at TPM Cafe:

When he came to Washington, Mr. Bush surrounded himself with tough-minded people who seemed not to be afraid to stand up to him. But now his team is loaded with weak-kneed toadies, and Mr. Bush is home alone. Karl Rove, of course, is fending off a potential indictment …

… What of the rest of Team Bush? Karen Hughes is at the State Department, as is Condi Rice. Al Gonzalez has decamped for Justice, and fellow Austinite Margaret Spellings is at the Department of Education. Harriet Miers is fighting a losing battle to avoid becoming a permanent punch line. Ari Fleischer is selling books and dispensing sage advice to corporations. And Mary Matalin is busy raising her girls and rallying the troops from the outside.

The exodus and incapacity were inevitable; replacing Bush’s stand-up guys and gals with suck-ups and sycophants was not.

Myriad pundits have pointed out recently that Ronald Reagan pretty much replaced the White House staff to get his second term back on track, as did Bill Clinton in his second term. And both presidents brought in solid people who were not necessarily long-time associates. But Bush went the opposite route; he drove the solid people away and wrapped himself in sycophany. Begala continues,

Mr. Bush would do well to augment his current staff, a C-Team if ever there was one, with some stronger characters. But to read the Bush-Miers correspondence is to gain a disturbing insight into Mr. Bush’s personality: he likes having his ass kissed. Ms. Miers’ cards and letters to the then-Governor of Texas belong in the Brown-Nosers Hall of Fame. You can be sure the younger and less experienced Bush White House aides are even more obsequious. The last thing this President wants is the first thing he needs: someone to slap his spoiled, pampered, trust-funded, plutocratic, never-worked-a-day-in-his-life cheek and make him face the reality of his foul-ups.

And so they wait. And they sniff the royal throne. They tell the Beloved Leader he’s the victim of a partisan plot (although how the Bush CIA, which referred the Plame case for prosecution, became ground zero of Democratic liberalism escapes me). They assure him all is well. But all is not well. People are looking over their shoulders. The smart ones have stopped taking notes in meetings. The very smart ones have stopped using email for all but the most pedestrian communications. And the smartest ones have already obtained outside counsel.

This White House might be saved if the old Repubican establishment would take the president into hand and give him some direction. But that is unlikely to happen, because the Bushies have pretty much destroyed the old Republican establishment. Sidney Blumenthal writes, “There is no one left to rescue the Republican Party from George W. Bush. He is home alone.”

Now the old establishment is faded. Its remnants largely consist of his father’s superannuated retinue. Not even the old Texas establishment in the person of James A. Baker III, Bush’s father’s field marshal and the former secretary of state (among his many official posts), who managed the Florida contest that gave the presidency to the son, is welcome in this White House.

The Republican Party after Bush, minus its traditional establishment, threatens to become the party of its irreducible base, the party of the old Confederacy and the sparsely populated Rocky Mountain states. But this base, however loyal and obsequious to Bush, regardless of any crisis, does not offer statesmen to step in to handle his shaken White House.

A sharp reversal of policy and turnover in personnel are the only actions that may enable Bush to salvage the shipwreck of his presidency, as they did for Reagan. But bringing in the elders, even if they could be summoned, would be psychologically devastating to Bush, a humiliating admission that his long history of recklessness and failure, from the Texas Air National Guard to Harken Energy, with rescue only through the intervention of his father and his father’s friends, has reached its culmination.

Other presidents, including the aforementioned Reagan and Clinton, have dug themselves out of second-term slumps. But they have done so by taking charge and making changes. Frankly, I don’t think Bush has it in him to do that. I think he is far more likely to retrench and wrap himself even tighter in his comfort blanket of sycophancy. If there are indictments (tomorrow?), it will be interesting to see if he is proactive and asks for resignations, or if he passively allows staff members to figure out their own next steps.

As for the next Supreme Court nominee–Bush’s probably wishing he could clone John Roberts. He may go with someone he thinks would be easily confirmed. Or, he may nominate some drooling paleo-hominid to play to his base, because they’re about the only friends he’s got left. We’ll see.

Not So Wild About Harry

Posted on by

The Washington Post reports that Harriet Miers just withdrew her nomination to the Supreme Court. So much for counting on November 7 hearings to distract the public from Traitorgate indictments.

Of course, if Bush wants a distraction, the next nominee will be somebody really outrageous.

Update: On reflection, would it have been smarter for the White House to hold off on this announcement until ten minutes after any Fitzgerald announcement? I guess that depends on whatever it is that Fitzgerald announces …

Mired in Miers

Posted on by

To tell the truth, I haven’t thought much about Harriet Miers. I figured (a) everything we are hearing about her is spin, and (b) her nomination could be withdrawn before there are hearings, so she’s a bridge we may never have to cross. Bloggers of the Right are thinking about her a lot, though. NZ Bear provides a table showing where righties are coming out on Miers–pretty solidly against.

And I’m wondering if one of those righties opposed to the nomination of Harriet Miers is … Harriet Miers.

Last week we heard that she gave half-assed answers to a questionnaire required by the Senate for federal judicial nominees. Embarrassing answers, in fact. David Savage wrote in yesterday’s Los Angeles Times that some scholars who saw her answers are shocked she made it out of law school.

At one point, Miers described her service on the Dallas City Council in 1989. When the city was sued on allegations that it violated the Voting Rights Act, she said, “the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.”

But the Supreme Court repeatedly has said the Constitution’s guarantee of “equal protection of the laws” does not mean that city councils or state legislatures must have the same proportion of blacks, Latinos and Asians as the voting population.

“That’s a terrible answer. There is no proportional representation requirement under the equal protection clause,” said New York University law professor Burt Neuborne, a voting rights expert. “If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable.”

David Stout of the New York Times wrote last week,

The contentious nomination of Harriet E. Miers to the Supreme Court hit another snag this afternoon when both the Republican chairman and ranking Democrat of the Senate Judiciary Committee said her responses to senators’ questions had thus far been unsatisfactory.

The committee chairman, Senator Arlen Specter of Pennsylvania, said Ms. Miers should redo a questionnaire prepared by a bipartisan Senate panel because her initial responses had been insufficient on “many, many of the items.”

The ranking Democrat, Senator Patrick J. Leahy of Vermont, agreed that Ms. Miers’s effort on the questionnaire had been “inadequate,” adding that some of his Senate colleagues had found her responses “ranged from incomplete to insulting.”

So what’s up with this? Surely Ms. Miers has noticed people are questioning her qualifications. You’d think she’d have tried a little harder.

But this morning on ABC’s “This Week,” David Brooks (whose New York Times column today is truly insipid but safely tucked away behind a subscription wall) said that he didn’t believe President Bush would allow Miers to withdraw even if she wanted to. I didn’t note down the exact quote, but Brooks said that if Miers went to Bush and told him she’d rather not go forward with the nomination, he’d say, forget it; we’re fighting this thing through.

I don’t remember where I read it, but somebody said last week that the Miers nomination was bordering on cruelty to Harriet Miers. She’s not ready for prime time, and everyone in America seems to know this but George W. Bush. Oh, and Hugh Hewitt. Not exactly the Brainiac Twins.

The sloppiness of Miers’s answers on the Senate questionnaire raises questions about how much she really wants the job.

Rightie blogger Stephen Bainbridge noted last week that Miers has a reputation for being meticulous about details, but her questionnaire answers said otherwise.

Matthew Scully wrote of SCOTUS nominee Harriet Miers that:

... Harriet Miers, in everything she does, gives high attention to detail. And the trait came in handy with drafts of presidential speeches, in which she routinely exposed weak arguments, bogus statistics and claims inconsistent with previous remarks long forgotten by the rest of us. If one speech declared X “our most urgent domestic priority,” and another speech seven months earlier had said it was Y, it would be Harriet Miers alone who noted the contradiction.

… It may be, in fact, that a details person is just what the Supreme Court needs right now. …

…Then David Hoffman found a puzzling conflation of venue and subject matter jurisdiction in Miers’ Senate Judiciary questionnaire. Next my friend and colleague Vic Fleischer parsed another section of the questionnaire and concluded:

I’m sort of amazed this woman made it through a clerkship. The most desperate cries for the red pen: “An example, of this distinction …” (delete the comma!), “position, we were against flag burning” (semi-colon or period, not comma), “requirements, as well” (awk).

… The problem goes beyond misplaced commas. Her answer sounds like that of an earnest (but not overly bright) high school student writing a practice essay for the SAT. “The Council was free to state its policy position, we were against flag burning.” Hmmm. Did the Council state its policy position, or did it enact a statute? Did the Council itself have an obligation to consider whether the ban was constitutional? If not, why not? Should the Council just enact whatever it wants, constitutional or not, and wait for the courts to knock it down?

The world is full of bright people who can’t spell and punctuate and whose prose is boring as turnips. But in general I believe that sloppy writing indicates sloppy thinking. People who think with precision usually write with precision, especially when they know the writing is going to be carefully scrutinized.

And if there is one thing a Supreme Court justice needs to be able to do it’s to think and write with precision. In controversial cases the written decisions of the justices are parsed to death by both the court-watching public and the entire judicial system. Regardless of Miers’s ideological predilictions, whatever they are, if she were to slap together written arguments as casually as she answered the questionnaire, her sloppiness could do considerable mischief.

(FYI, the famous Robert Bork WSJ essay on Miers’s writing inability is here.)

But is it possible she really could have done better on the questionnaire but chose not to? She may have consciously decided to do a poor job to poison her chances in the Senate Judiciary Committee. Or, it’s possible the fight for the nomination is so painful for her she couldn’t bring herself to spend time on the questionnaire, and raced through it to get it over with. (I have the same struggle every year with facing up to income tax forms, so I commiserate.)

The questionnaire raises another question, which is how much help Miers is (or is not) getting in the White House? From the David Savage article linked above:

Stanford law professor Pamela Karlan, also an expert on voting rights, said she was surprised the White House did not check Miers’ questionnaire before sending it to the Senate.

“Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking,” she said.

I’ve seen speculation that Bush charged ahead with the Miers nomination against the wishes of Cheney and Rove and other major players in the administration. Is it possible that the Miers nomination is so much Bush’s baby that administration officials are walking away from the fight? If that’s the case, the Bush White House has gone past “disarray” and is well on the way to “dysfunction.”

As long as we’re out on a limb, let’s go out a little further and consider the possibility that there are people in the White House who want the Miers nomination to be withdrawn to protect Bush. Recent news stories have told us some interesting things about Miers and her relationship to Bush. For example:

As Texas Lottery commissioner, Miers squashed an investigation into corruption at Governor Bush’s request. The following is from World Net Daily, believe it or not:

Larry Litwin was fired in 1997 as executive director of the Texas Lottery Commission because then-Governor George Bush wanted an investigation into possible criminal political-influence buying squashed, and then-commissioner Harriet Miers, a Bush appointee, complied with his wishes and terminated him – that is the story Litwin is prepared to tell the Senate Judiciary Committee.

Litwin’s concerns over corruption in the agency he directed involved GTECH, the Rhode Island company that operated the lottery, prominent Texas lobbyists on GTECH’s payroll, and a laundry list of Texas politicians – Democrat and Republican. Those details and the facts surrounding his firing will be offered to the Senate Judiciary Committee as soon as GTECH delivers a letter to committee staff releasing him from a 1998 gag order negotiated to end his wrongful termination federal lawsuit against GTECH.

WND has learned Littwin’s testimony will disclose bi-partisan corruption, with money changing hands in a political influence buying scheme that spread Texas lottery money around widely, to Democrats and Republicans alike. Sources say Littwin’s testimony will put new light on the over $160,000 in payments the Bush gubernatorial campaigns made to Harriet Miers’ Locke Liddell law firm, including the $19,000 she was paid in 1995 to act as Bush’s personal emissary in a mission to make sure Ben Barnes kept the lid on George Bush’s explanation of preferential treatment he received when getting into the Texas Air National Guard ahead of a long list of other applicants.

Did that just say Bush got preferential treatment getting into the Texas Air National Guard? Hard to tell, if you get really precise about it. You could interpret this to mean there was a Ben Barnes story that Bush had to explain away. But the fact that World Net Daily published this is a sure sign of the Apocalypse. (Repent noooooooow!) And this is another issue I’m sure the Bushies would rather stay dormant.

And Miers may have some scandals independent of Bush, or at least without known connections to Bush. Jack Douglas and Stephen Henderson of Knight Ridder report:

Supreme Court nominee Harriet Miers collected more than 10 times the market value for a small slice of family-owned land in a large Superfund pollution cleanup site in Dallas where the state wanted to build a highway off-ramp.

The windfall came after a judge who received thousands of dollars in campaign contributions from Miers’ law firm appointed a close professional associate of Miers and an outspoken property-rights activist to the three-person panel that determined how much the state should pay.

The resulting six-figure payout to the Miers family in 2000 was despite the state’s objections to the “excessive” amount and to the process used to set the price. The panel recommended paying nearly $5 a square foot for land that was valued at less than 30 cents a square foot.

Mediation efforts in 2003 reduced the award from $106,915 to $80,915, but Miers, who controls the family’s interest in the land, hasn’t reimbursed the state for the $26,000 difference, even after Bush appointed her to the Supreme Court.

At this point I’m opposed to Miers for the SCOTUS. And this would be true even if I had a memo from the spirit of Margaret Sanger telling me Miers was OK on Roe v. Wade. She’s just plain not qualified.

On the other hand, the hearings could be a ton of fun …

Update: Looks like the nomination’s days are numbered.

Hooey; or, Why Paper Money Is Unconstitutional

Posted on by

“I told the people on the campaign trail that I’ll pick somebody who knows the difference between personal opinion and the strict interpretation of the law. You might have heard that several times. I meant what I said.” — George W. Bush

“For now, I’ll sit the Miers fight out until I know with some certainty that she’s a vote for our values.” — Gary Bauer

We’ve known for a long time the “interpretation of the law” speech is hooey. During the Terri Schiavo episode the social conservatives made it clear they have no regard whatsoever for the constitution, federalism, separation of powers, or the rule of law. They want what they want, period, even if they have to pull on their jack boots and stomp all over democratic principles to get it.

And we’ve known for a long time that rightie claims of wanting judges who “don’t legislate from the bench” is also hooey. Adam Cohen wrote in the New York Times (April 19, 205),

Conservatives claim that they are rising up against “activist judges,” who decide cases based on their personal beliefs rather than the law. They frequently point to Justice Antonin Scalia as a model of honest, “strict constructionist” judging. And Justice Scalia has eagerly embraced the hero’s role. Last month, after the Supreme Court struck down the death penalty for those under 18, he lashed out at his colleagues for using the idea of a “living Constitution” that evolves over time to hand down political decisions – something he says he would never do.

The idea that liberal judges are advocates and partisans while judges like Justice Scalia are not is being touted everywhere these days, and it is pure myth. Justice Scalia has been more than willing to ignore the Constitution’s plain language, and he has a knack for coming out on the conservative side in cases with an ideological bent. The conservative partisans leading the war on activist judges are just as inconsistent: they like judicial activism just fine when it advances their own agendas.

Cohen goes on to site examples of Scalia’s activism and his uncanny ability to twist the plain language of the Constitution around to mean whatever he wants it to mean. But you knew that.

One of the Right’s new buzzwords is originalism, which dKosopedia explains—

The term originalism refers to two distinctly different ideas: One version, known as original intent, is the view that interpretation of a written constitution is (or should be) consistent with what it was originally intended to mean by those who drafted and ratified it. The other version, known as original meaning, or textualism, is the view that interpretation of a written constitution should be based on what it would commonly have been understood to mean by reasonable persons living at the time of its ratification.

Originalism is only concerned with determining the meaning of a text. Constitutional interpretation is not constitutional construction; rather, construction is the determination of how the provisions of a text apply to a specific question.

The key to originalism is that interpretive decisions made by Judges should be based on facts about the document when it was originally written or ratified, with minimal adjustments for the time or context in which it is interpreted. Under this method, even when a judge sees an issue he is persuaded ought to be ameliorated somehow, if the law as written and interpreted in the light of its original intent or original meaning does not support the end result sought, a ruling supporting that result is not granted. In this manner, originalists contend, alteration of the Constitution remains the perogative of the amendment process outlined in Article V.

I agree with the originalists to a limited extent. Whether the Constitution is or is not a living document, it’s written in English, which is a living language. And language changes; the meanings of words and phrases shift over time, and sometimes can end up meaning something quite different from what they meant a couple of centuries ago. So when you’re dealing with a specific phrase–for example, “high crimes and misdemeanors”–it’s a good idea to find out what that phrase might have meant to a bunch of guys writing a constitution in the late 18th century.

The problem is, it takes someone with at least some scholarly aquaintance with history and legal language to appreciate what those meanings might have been. And we’ve seen in recent years that righties don’t have a lot of patience with scholarship, especially when it gets in the way of their agenda. For example, you might recall the episode, ca. 1998, in which several truckloads of historians tried to explain to the House of Representatives that none of the articles of impeachment they were bringing against President Clinton rose to the level of a “high crime or misdemeanor” as the Framers understood the phrase (one such explanation here). Righties dismissed the scholars as if they were so many annoying mosquitos.

For that matter, continued rightie insistence that the Framers intended for America to be a Christian nation, in spite of the fact that they failed to mention any Person of the Trinity in the Constitution, seems more “revisionist” than “originalist” to me. But let’s go on …

Although I’ve said that I agree the Constitution should be understood in the context of 18th-century language, the unworkability of rigid originalism struck home to me a few weeks ago as I was reading a book about Abraham Lincoln and the Civil War–

Chase regularly came to Lincoln and moaned about the spiraling costs of the war and the increasing difficulty of borrowing Wall Street money to pay for the mountains of hardtack, the uniforms, the guns, the soldiers’ pay. Then, one day in the summer of 1862, a visitor from Ohio, David Taylor, told Lincoln there was a way for the government to raise huge amounts of money: by issuing interest-bearing notes, which could circulate as currency or be kept as an investment.

Lincoln grasped hold of this idea with an enthusiasm fueled partly by desperation. Chase told him Taylor’s plan was impossible, the Constitution did not allow the government to issue a paper currency. [Geoffrey Perret, Lincoln’s War (Random House, 2004), pp. 201-202]

I checked. Article I, Section 8, Clause 5, says Congress can coin money. It doesn’t say Congress can print money. That’s right, folks. Y’know those green paper things you carry around in your wallet? They’re unconstitutional.

Apparently Chase’s opinion was not some off-the-wall interpretation from one guy. The text goes on to say that Lincoln agreed printing money was unconstitutional, but he did it anyway. And soon everybody was spending “greenbacks” just like coins.

The money thing is not the only little surprise lurking in a very strict interpretation of the text. The Framers had serious heebie-jeebies about maintaining a standing army, for example, and down in Article I, Section 8, Clause 12 wrote that Congress had the power to “raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years.” Needless to say, this provision has been interpreted quite loosely also.

Bottom line: If we woke up tomorrow to find the originalists in charge, the whole dadblamed nation would come to a screeching halt, and we’d spend the next several years working through the Constitution and passing amendments thereto before we could get the critter up and moving again.

The genius of the Constitution is that it gave us a working structure for governance that has lasted these many years. But within that structure We, the People have felt free to expand the role of government as needed to meet changing realities and to “establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty,” etc.

What the originalists want to do is toss out more than two centuries of hard-won experience and start from scratch. I vote no.

But back to the courts. In spite of Alexander Hamilton’s stern warnings in Federalist #78 that the courts needed to be kept separate from Congress —

In a monarchy [the judiciary] is an excellent barrier to the despotism of the prince; in a republic it is a no less excellent barrier to the encroachments and oppressions of the representative body. And it is the best expedient which can be devised in any government, to secure a steady, upright, and impartial administration of the laws. …

… though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive….

The complete independence of the courts of justice is peculiarly essential in a limited Constitution. By a limited Constitution, I understand one which contains certain specified exceptions to the legislative authority; such, for instance, as that it shall pass no bills of attainder, no ex-post-facto laws, and the like. Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the Constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing.

— in recent years the Right has embraced the notion that the judiciary is an arm of the legislature and must follow its instructions. Thus, in the Terri Schiavo case, when Congress tried to legislate what the courts should decide, and it didn’t work, the righties howled about the “out-of-control judiciary.” What they meant, of course, was out of their control.

A variation on this gripe is that since “liberals” can’t win elections they are using the courts to promote the liberal agenda. If by the “liberal agenda” you mean respecting civil liberties and equal treatment under the law I suppose we’re guilty as charged. But I’d like to know exactly how it is we liberals are dictating our evil schemes to the courts and if I can apply for a place on the liberal judiciary steering committee. Sounds like fun.

Anyway, I started out to write about Harriet Miers and got sidetracked. Just read this; it’s a hoot.

Death of a Salesman

Posted on by

He’s pitching as hard as he can, but so far he’s not closing the deal.

Peter Baker and Dan Balz write in today’s Washington Post:

The conservative uprising against President Bush escalated yesterday as Republican activists angry over his nomination of White House counsel Harriet Miers to the Supreme Court confronted the president’s envoys during a pair of tense closed-door meetings.

A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not. Over the course of several hours of sometimes testy exchanges, the dissenters complained that Miers was an unknown quantity with a thin résumé and that her selection — Bush called her “the best person I could find” — was a betrayal of years of struggle to move the court to the right.

I just love the next paragraph:

At one point in the first of the two off-the-record sessions, according to several people in the room, White House adviser Ed Gillespie suggested that some of the unease about Miers “has a whiff of sexism and a whiff of elitism.” Irate participants erupted and demanded that he take it back.

According to Dana Milbank at WaPo, Gillespie later told reporters that “people are getting excited about her confirmation.” Snort.

Maura Reynolds and Tom Hamburger of the Los Angeles Times write that yesterday conservative leaders put Gillespie through a wringer.

Many expressed feelings of anger and betrayal to Gillespie, former chairman of the Republican National Committee, and others sent to the gathering by the White House.

“Trust has been broken,” said one attendee who asked to not be named. The meeting participant told Gillespie that efforts to reassure conservatives “won’t work,” adding, “You can’t unbreak an egg.”

The crowd applauded as one speaker after another peppered Gillespie with questions regarding Miers’ past political contributions to Democrats, her votes as a member of the Dallas City Council and whether her nomination smacked of cronyism, according to meeting participants.

It seems particularly galling to the righties that a nominee can’t sail into the Court under a right-wing flag, never mind that no one has attempted the journey under a left-wing flag in my memory.

“With this nomination, we have ratified the strategy of the left and they have won,” said Richard Lessner, former executive director of the American Conservative Union. “With this pick, the White House has ratified what the left did to Bork.”

He was referring to Robert H. Bork, President Reagan’s conservative nominee for the court who was rejected by the Senate after liberals challenged his well-documented views. …

… Lessner said in an interview later that Bush should have picked from the long list of qualified “conservative heroes.”

He added that Miers’ nomination sent a message from Bush “that a jurist with established conservative credentials cannot be confirmed for the Supreme Court. He has capitulated to that view, and that’s why this is a major loss for the conservative movement.”

Translation: We want an activist judge who will “activate” our agenda. And we will hold our breath until we get one.

The males of the pack are snarling over who gets to be next alpha dog:

On Wednesday, skepticism about Miers’ nomination came from some GOP senators who normally are party loyalists.

“There are a lot more people — men, women and minorities — that are more qualified in my opinion by their experience than she is,” Sen. Trent Lott (R-Miss.) said in a television interview. “I don’t just automatically salute or take a deep bow anytime a nominee is sent [to the Senate]…. I have to find out who these people are, and right now, I’m not satisfied with what I know.”

Lott’s sentiments echoed those of a number of fellow conservative Republican senators, including John Thune of South Dakota, George Allen of Virginia and Sam Brownback of Kansas — all of whom are thought to harbor presidential aspirations.

Another signal the Bush Era is over–the Republican contenders are already starting to run against the Bush legacy.

Regarding Ms. Pig in a Poke, Thomas Oliphant presents one of her “legal opinions” in today’s Boston Globe. It seems Miers had a hand in the White House argument that it was perfectly legal to pay Armstrong Williams to promote No Child Left Behind.

Take Armstrong Williams — please. A friend from the left alerted me to this example of Bush administration antiethics, and it could be a representative indication of Miers’s devotion to her boss at the expense of independent, sound judgment.

When the conservative commentator’s receipt of money, via the Education Department for activities in support of its flawed and underfunded No Child Left Behind program, was exposed, the Bushies went into full damage control. From Bush himself down to department officials, shock and horror were expressed, as was a vow not to pay for praise anymore.

Much less noticed was the administration’s careful legal argument that although the activities of Williams and others on the take were politically dumb, they were not illegal — a judgment in which the White House counsel’s office was not a disinterested observer. Two Democratic senators — Frank Lautenberg of New Jersey and Edward Kennedy — asked Congress’s investigative agency, the Government Accountability Office, to probe further.

The GAO not only confirmed the six-figure payments to Williams via subcontract from a public relations firm, it also uncovered some previously undisclosed actions — notably the commissioning of a newspaper column from a press syndicate that was distributed nationally as if it had been independent opinion. And it also probed the use of public money at the Education Department to monitor and rate the coverage by individual outlets and commentators for fealty to the administration line.

For all its spin about stupid ideas, the administration took the odd position that the activity was perfectly legal. These opinions came not only from the Education Department itself but, more important, from the Justice Department’s Office of Legal Counsel, whose ties to the White House counsel’s office are famously intimate.

Both entities opined that because what was being disseminated was information, there was no requirement that the government disclose that it was the source of the information.

This did not pass the GAO’s laugh test, and it termed all the expenditures improper precisely because the public was being fed government positions in the guise of actual journalism. The law that was violated is designed to avoid what this stuff really was — covert propaganda.

I hope somebody grills Miers about that in the hearings.