PeterDavid.net

On the plus side, the Freedom Clock dropped under 1200 the other day.

Could've been worse. That pretty much sums up my feelings on this appointment.

Will she strictly adhere to Bush's wishes? I dunno. I personally get the feeling 90% of the positions he advocates, he advocates solely to court his conservative base. So maybe that won't matter after he leaves office. And being on the highest court in the land can give anyone a heady rush of independence, so maybe she'll develop her own mind.

I don't expect her to radically change her views, which are obviously compatible with Bush's, but on the other hand, Bush seems largely content to use conservative social issues for political gain, and then try to avoid any real fights on it when it comes to policy-making. That's the core of conservative fears about this appointment, and I guess that's the hope for everyone else.

Also, the idea of someone who considers bush "the most intelligent person (she's) ever met" in such an important position scares me.

Michael Brunner, that's exactly the reason why I oppose her.

I've got to go with a simple "unqualified" on this one.

No experience, no clear-cut legal opinions, no real signs of brilliance (legal or otherwise). Roberts didn't thrill me, but he certainly showed ample evidence of intelligence and even thoughtfulness. Miers has shown neither -- her only dominant attribute is unflinching loyalty to Bush.

For the record, this is the second time Bush is attempting to put into high office someone whose job in the past has been to protect his sorry legal ass. Now Gonzalez is A.G., and Miers has been nominated for the highest court in the land.

Roberts was in no way worth a filibuster, and I'm glad none surfaced. This one: let 'er rip, if things even get that far. I remain hopeful that for once, maybe people are waking up and saying "um, dude, there's no way you're serious when you say she was your best choice."

TWL

"Being a judge" is not any kind of requirement for being a Justice on the Supreme Court. In fact, a good chunk of them have had no prior bench experience -- the late William Rehnquist the most recent example.

J.

I never said it was a requirement because, well, I know stuff. And I knew Rehnquist wasn't a judge before being appointed to the Bench. I question the "good chunk" designation, and wonder how many SC justices have not been judges beforehand.

Furthermore, as noted, it suits Bush's purposes that she isn't a judge. Doesn't give those in charge of confirmation any clear idea of her views. But since Bush appointed her, I think we pretty much know what her views are: His.

PAD

Peter: Actually Jay Tea's comments about a "good chunk" of the Justices not previously being judges is correct. There have been plenty of Non Judges. In addition, there is no Constitutional requirement that a Justice even be a lawyer.

On the other hand comment sense dictates that this current choice is not qualified for such an important position. She is clearly a turkey.

They need to book Miers into a motel ASAP and keep her there 'til hearings begin. That way, when they ask if she has any experience that qualifies her to hold the position for which she's interviewing, she won't be lying when she replies, "Well, no, but I *did* sleep at a Holiday Inn Express last night..."

Wildcat

I pretty much threw up my hands after hearing him saying something to the effect that "I know her. I know that she will never change. She will have the same opinions years from now that she has today." As a counselor, I am always concerned when I run into people who hold fast to all of the beliefs and perceptions that they were indoctrinated with as small children. Growth is not only healthy, it is imperative when interacting with more than one's immediate family.

I don't expect people to change to think like myself (In fact, this would bore me to hell). I do expect them to be open enough to hear what others have to say, what observable facts indicate, and view evidence and patterns in the world around them as it comes to pass. It is called enlightenment and leads to a basic understanding of the world. Georgie has never shown this ability and that has always troubled me. Due to repeating the same behavior, statements and tantrums, he has closed himself off from looking objectively at anything and has shown himself to have little to no learning curve.

Fred

I believe the separation of powers has long since been eroded by the legislative branch and the legislative branch, by the former's desire to create law in lieu of reading the Constitution, and the latter's desire to make "advise and consent" into a political football meant to destroy candidates on the basis that the other side nominated the candidate.

That said, it's a sad sad thing that the Republicans -- in control of the White House and the Congress -- can't nominate and push through a known proven Constitutionalist. The fact that they're all cowering from such a fight is alarming, to say the least.

Rehnquist was deputy AG, though. i understand that many of the other non-judge Justices had similar backgrounds.

Miers is a personal legal counsel and former lottery commissioner.

at least she's not someone like Janice Rodgers Brown with a clear record of favoring corporate rights over individual rights.

still, pretty much all we have to back Miers is that G.W. has faith in her.

Boy, if you think you can call ANY woman on the phone and get her to do what you want, you live in a different world than I do...

Weird choice, but, well, no, just a weird choice...

Bush appointed her? I though that the President gets to pick who he wants, but the Senate has to approve the choice.

Seems like most of the vocal opposition to Miers has been from the right, the argument being that while she MAY well turn out to be a good conservative judge, there are plenty of perfectly solid quality men and women who are UNDOUBTEDLY fit for the job. Why gamble, as Bush's father did with Souter?

Certainly she is not "the best person" for the job but I doubt that ANY of the people who got to the position were factually "the best". It's a big world.

In a perfect world, I would say that the Senate should probably confirm her, unless they can demonstrate that she is unfit. However, in this perfect world, "unfit" would not mean simply not conforming to one's political philosophy. But that ship has sailed. Democrats have made it clear that there will be litmus tests for future judges and Republicans will certainly follow suit; the days where a very liberal judge like Justice Ginsburg would get a 96 to 3 vote in favor, despite refusing to answer every hypothetical question put forward by senate blowhards are gone.

Given that the system has been politicized to a degree unimaginable a few decades ago, a President had best just nominate the most qualified articulate person they can find (and who is willing to have their name and family smeared by the Party Out Of Power, whichever it may be.) That will eliminate a lot of very qualified people but that's reality. Miers doesn't strike me at first glance as likely to win--Republicans have reason to be wary and Democrats will love the opportunity to hand Bush a defeat--even if it ultimately results in a more MORE conservative justice being chosen.

I suspect she may withdraw her name.

Also meant to mention, way off topic--I don't know if anyone who frequents this board lives or has family in the areas affected by the massive earthquake that hit Asia but if so, I hope they are alright. The death toll seems to be rising at a horrific rate and given the isolation of some villages in the affected areas it may be even worse than we know.

Miers doesn't strike me at first glance as likely to win--Republicans have reason to be wary and Democrats will love the opportunity to hand Bush a defeat--even if it ultimately results in a more MORE conservative justice being chosen.

Well, if that happens, at least you'd have someone competent.

Not a loss in my book.

A list of Justices with no prior judicial experience can be found at http://supreme.lp.findlaw.com/supreme_court/justices/nopriorexp.html
Some pretty distinguished names on it, such as Reinquist and Powell on the current or just past Court, Bryon White, Felix Frankfurter, William O. Douglas, Earl Warren, and Louis Brandeis.

Y'know, what I honestly can't figure out is how Bush manages to inspire such loyalty in his cronies. He's never struck me as particularly charismatic, and he's certainly not visionary. Only thing I can come up with is a quid pro quo expectation of favor exchanges, but the loyalty seems stronger than that alone'd justify.

Wildcat,

That's bad even by my jokes standards.

God, I wish I had thought of that one first.

:)

I pretty much threw up my hands after hearing him saying something to the effect that "I know her. I know that she will never change. She will have the same opinions years from now that she has today." As a counselor, I am always concerned when I run into people who hold fast to all of the beliefs and perceptions that they were indoctrinated with as small children. Growth is not only healthy, it is imperative when interacting with more than one's immediate family.

As I've said before around these parts, one of the very few Stan Lee philosophical musings that rings 100% true for me relates to this. It's from the first issue of Spectacular Spider-Man (the '60s magazine, not the later comic), and is either a musing from George Stacy or Joe Robertson, depending on whether you read the original or in the adaptation it had later.

Stacy/Robbie is getting ready to look through some background material on a charismatic candidate who's come out of nowhere, and JJJ scoffs that there's no need for such: "I know all I need to know about him."

As Jonah walks away, Stacy/Robbie thinks to himself, "God save us from those who know all they need to know ... about anything."

I've been coming back to that statement a lot in the last five years.

TWL

what I honestly can't figure out is how Bush manages to inspire such loyalty in his cronies

I don't think it's loyalty so much as 'if he goes down, we all go down, so we have to cover his ass to protect ours.'

I don't follow the assumption that this judge will do whatever Bush wants just because he appointed her. The purpose of the appointment for life is to, in theory, make judges above political concerns. Bush wouldn't have any real power over her after her appointment.

It has nothing to do with him having power over her. It's that she's a croney. She'll WANT to keep him happy.

I think that's part of why Bush likes to work with older woman. My guess is that, since he's a dunce, they tend to mother him...as opposed to men who just think he's an idiot.

PAD

I think it's great how after Katrina and Brownie, now the Republicans get on the Administration about anything that might look like Bush giving High Priority Job's to unqualified people. They are going to be Busy for the next 3 years he's in office, cause I think John Stewart was right, Katrina is Bush's Monica.

Sure, there have in fact been a good number of SCOTUS justices with no prior judicial experience. However, the goodly number of those did have significant administrative, governmental, or legal scholarship experience.

According to the list linked by Tom, exactly 6 SCUTUS justices have come from private practice. That isn't entirely accurate, as Fuller did have state government experience prior to serving on the SCOTUS. Of the remaining 5, one graduated from Yale, another from Harvard (back when that actually meant more than it does today), one was a doctor first, taught himself the law, and was very prominent in state politics, and a fourth had a private practice of national interest. The fifth was none of that, but is often blamed for the reason why the 16th Amendment was necessary. Which, depending on your view, could be either a good or a bad thing, I suppose.

Point being, of the 5 Justices that came from private practice, 4 of them had proven that they were significant legal presences. The odd duck from that set is viewed fairly negatively by most.

We've had 112 SCOTUS justices, and exactly ONE has had a pedigree close to Miers. 111 have either had prior judicial experience, significant government experience, and/or (in most cases it's AND) significant legal scholarship experience prior to serving on the court. The bulk of the SCOTUS justices have been among the most respected legal minds of the time. And no disrespect to Miers, who I am sure is a fine lawyer, but she's no where near the caliber of a Rehnquist or a Brandeis.

Not to mention that for the past decade, her main function as a lawyer has been to keep Bush electable, bury his skeletons, and essentially make sure he didn't screw up so badly that he'd not be able to sit in office.

PAD: "I question the "good chunk" designation, and wonder how many SC justices have not been judges beforehand."

Abut half, as I recall. However, all of the current Supreme Court judges spent time on the bench and the nomination of a non-judge to this position is a very uncommon practice in the modern world. Furthermore, an examination of some SC judges without this sort background typically reveals that the individual had some sort of comparable experience qualifying them for the position.

Taking a quick look through a few:

William Rehnquist served as Assistant Attorney General to John Mitchell in the years immediately preceding his appointment to the Supreme Court.

Lewis Powell served as the president of the American Bar Association previous to his appointment.

Arthur Goldberg was a prominent and well-known labor lawyer who was directly involved in the merger of the American Federation of Labor and the Congress of Industrial Organizations, among other notable achievements.

Earl Warren was the District Attorney of California's Alameda County (which includes Oakland and Berkeley), California's State Attorney General, and ultimately the Governor of California. And of course, Warren was Thomas Dewey's running mate in the 1948 Presidential Election.

Tom C. Clark was the civil District Attorney for the city of Dallas. He was also the US Attorney General.

Hugo Black had been the Prosecuting Attorney of Jefferson County, Alabama. He was also a Senator.

William Douglas was known as an expert on commercial litigation and bankruptcy, and was chairman of the US Securities and Exchange Comission previous to his appointment to the Supreme Court.

Felix Frankfurter was William Howard Taft's Secretary of War. Also, he was a professor at Harvard Law School.

Louis Brandeis authored the Brandeis Brief, the first application of Social Science to law, which still has a huge influence on American law today.

...and Harriet Miers? What's her resume looking like?

White House counsel, February 2005-present;

White House deputy chief of staff for policy, 2003-2004;

White House staff secretary, 2001-2003;

Texas Lottery Commission chairwoman, 1995-2000;

Attorney in private practice, Locke Liddell & Sapp in Dallas, Texas, 1972-1999;

Dallas City Council member, 1989-1991

Not even in the same category as the rest, as far as I can see.

That said, there are undoubtedly some individuals in the past who rose to similar positions while equally unqualified. However, that's hardly a good basis for justification of a life long appointment of considerable influence.

Why can't Bush gives his buddies jobs that aren't going to shape our lives? How about appointing your cronies as the ambassador to Brazil or something non-threatening.

But picking random people, first for the head of FEMA, now for the flippin' supreme court ... this is our government, right, not a frat?

PS - I don't know if it's been posted here, but did you hear that Bush came out with his view on Roe vs. Wade? Listen, he doesn't care how poor people got out of New Orleans.

bush is in a meeting with his top generals. they inform him "sir, 3 Brazilian soldiers were killed today".

bush responds "That's terrible. how awful"

There's a moments pause, during which the generals wonder why bush is suddenly so concerened about 3 soldiers.

Then bush asks "How many is in a brazillion?"

PAD, obviously a lot of the right wing camp is NOT happy with this. And I don't think it is staged to fake out the Democrats. While I don't agree with your portrayal of her of simply being a Bush "yes woman," I do admit that since she works so closely with him, Bush has to have some idea of what she believes and would do. I am not fully comfortable with this one either (for other reasons). But Bush is in no way skirting the constitutional intent. And there are 100 Senators who get to evaluate his recommendation.

Bottom line, I think you are right to the extent that you won't like how she rules. Just as I did not like (and do not like) the justices Pres. Clinton appointed. But the constitutional intent is that this is what a president gets to do -- appoint judges. It is up to the Senate to affirm or not.

Iowa Jim

But since Bush appointed her, I think we pretty much know what her views are: His.

As we've seen, previous Republican presidents have assumed this about their nominations, and were "burned" for it.

It seems that getting on the SC is a pretty liberating experience for many (and I don't say this based on the notion of political camps).

The problem with Bush is that I honestly believe he's stupid enough to think that, if Miers is confirmed, she'll bend over backwards to judge based on Bush's wishes.

That her loyalty to him will overrule everything - Bush's own comments on Miers seem to support this notion.

But as I mentioned above, this just hasn't happened in recent decades.

I'm not sold on this nomination by any means. However, looking at the "spin", they seem to want to take someone with "real world" experience and put them on the court. Okay, fine, but what about Meier is so "real world" that it elevates her over others?

She was in private practice for a lot of years, ran the Texas Lottery and the Texas State Bar before coming to the White House.

Is there anything on this list that makes one think that her "real world" experience is somehow so great that it's worth a lifetime appointment to the highest court? Frankly, for real world experience, I'd rather see a businessman-turned-mayor to get the kind of "down in the trenches" worldview they seem to be wanting. I can't name any names offhand, but Meier is positively underwhelming on nearly all counts.

Look at it this way, though, at least she never worked for Halliburton :)

"Look at it this way, though, at least she never worked for Halliburton :)"

That we know of.

I sure wouldn't rule it out.

PAD

"Why can't Bush gives his buddies jobs that aren't going to shape our lives?"

Because that'd piss off his buddies, and they'll stop being his buddies as a result.

Besides, it's not as if he will suffer if they screw up. He and his interests are all rich enough to buy their way out of any calamity that might ensue, and that's all that matters. If the rest of us -- the folks in the 99.95% of the population that aren't the "haves and have mores" -- suffer as a result...

...well, that's when he breaks out the "aw shucks" conservative compassionism crocodile tears act.

--R.J.

I think Bush, and everyone he choses for positions or nominates as the case calls or it have been taken over by the Goa'uld. Bush is just trying to soften us up for when the rest of the system lords get here. We have been living in a foothold situation for 5 years. We're all doomed!

JAC

I don't know how to insert links, but here's an interesting story from that famous liberal rag, the Wall Street Journal...

http://online.wsj.com/public/article/SB112864645334762361-QPqSomDgNvRS82HisyZ3NexLQFY_20061007.html?mod=tff_main_tff_top

So much for the lady being a strict constructionist, hey?

Democrats have made it clear that there will be litmus tests for future judges and Republicans will certainly follow suit;

Republicans have already followed suit and in fact, have been calling for a "litmus test" on SC nominees since the days of Reagan. Why do you think Souter and O'Conner are considered traitors to the right? Because they didn't follow the script and vote to overturn Roe v. Wade as was expected. It's the same reason that Dobson has been all over TV crowing about thinks he "probably shouldn't know" because he's been let in on the secret handshake. In this way, the Miers nomination is a more important one than Roberts' was for both the pro-life and pro-choice camps. Roberts replaced Renquist who always voted pro-life. Miers will replace O'Conner and thus tilt the court one more vote closer towards overturing RVW.

Appointing an SC justice has always been a crapshoot for a president because many have had come to look at things differently once they put on the robe. It's not really anything new. Truman once called on of his own appointees a "dumb son of a bitch" for voting against positions Truman thought he held.

I really do believe that in this case, the "fix" is in and there has been a secret quid pro quo for Miers to vote against Roe v. Wade in exchange for her nominee. It's why she has been tapped ahead of dozens if not hundreds of more qualified candidates.

And yes, I know, the president has the right to nominate whomever he chooses, but "advice and consent of the Senate" is supposed to mean more than just rubber stamping his picks. The clear intent (for you original intent people) of the founding fathers was for the Senate to review the qualifications of each candidate in detail. It is supposed to mean more than just checking their views on hot button issues, so both sides have failed on that account.

If Miers is confirmed, though, we'll have a justice who is on a mission to overturn RVW, not because it's bad law (which I happen to think it is), but because it makes bad social policy.

If that isn't the very definition of that that great bugaboo the republicans rail against, the activist judge, then I don't know what is.

Republicans have already followed suit and in fact, have been calling for a "litmus test" on SC nominees since the days of Reagan.

reality: Clinton nominated two justices to the supreme court:
Ruth Bader Ginsburg- won approval 96 to 3

Stephen Breyer- won approval 87 to 9

republicans at that time were willing to confirm justices who were capable, even if they did not agree with their politics. The fact that 22 Democratic senators were willing to vote against the equally (at least) qualified John Roberts tells you how poisoned the atmosphere has gotten. I suspect that the next Democratic president will have the same difficulty with his or her nominations from the Republicans.

I personally disagree with this--just because your opponents are acting dishonorably it doesn't follow that you should as well.

Sorry, Bill -- I don't agree that voting against someone based on your own personal convictions is somehow dishonorable.

I've said before that I'd probably have voted against Roberts were I in the Senate, and I'll stand by that. He and I disagree profoundly on enough matters that I could not in good conscience support placing him on the high court.

However, I do recognize that he is very well qualified by several different measures, and I respect that. That's why I've also said that while I'd personally vote against him, I would not support an attempt to filibuster.

I'm admittedly biased towards considering myself reasonable, but I fail to see how the two paragraphs above constitute poisoning the atmosphere or acting in a dishonorable fashion.

Besides, if you want to be dismissive with lines like "Reality", you're not exactly on the high ground when others quote Republican activists who DO in fact explicitly ask for the litmus test Den describes and you mock.

(As for Miers ... well, as I've also said, all bets are off there. I consider her manifestly UNqualified, and I'm clearly not alone in that assessment.)

TWL

One really interesting question I've heard come up is who has the burden of proof? Or more saliently, does the nominee and President have the burden to show why someone should be confirmed, or does the Senate have the burden of showing why someone shouldn't be confirmed? I don't mind allowing the President some leewau in civilian appointments (because incompetent appointees can always be removed from their positions), but with a lifetime appointment, the onus definitely lies with the President.

Another idea I've seen floated is that Miers is in part Bush's insurance against torture blowback. Apparently she and Roberts lean towards the idea of the Executive having wide latitude in times of war. In the increasingly likely event that the administration is made to answer for the "fraternity pranks" committed and approved under its watch, having a couple of understanding judges on the SCOTUS would really be handy.

Tim,

I don't consider you dishonorable. That is, to a large degree, a matter of personal morality. I've known some criminals who were honorable in their own fashion, so it's not like I consider it a virtue that stands on its own anyway. (note to the careless reader-I'm not calling Tim a criminal either).

That said, I personally could not in good faith vote down a person because they simply espouse perfectly legitimate political views that happen to be contrary to my own (I'm not talking about someone who believes that Jews control the media or that the Rapture is coming next week). The reason the Hollywood Blacklist was wrong isn't because the people who got blacklisted weren't Stalinist sympathizers--at least a few were--it was because it's wrong to do that to people in a free society.

For the vast majority of our history the only reason people were denied a place on the Supreme Court was because they were deemed not qualified and that's the standard I would use. It has the benefit of my not having to explain why it would be wrong to vote down MY candidates when I was so willing to do the same to THEIR candidates.

I think it's a slippery slope--if we accept that qualified people should be denied a spot on the court because of partisan politics, where so we draw the line? Why would denying a college professor tenure for belonging to the "wrong" party be any worse?

So, in summery, I think that those Republicans who put aside their differences with the very liberal Judge Ginsberg and voted her in by a wide margin acted far more honorably than those who voted against Roberts, knowing that he was absolutely well suited to the job. But that's just my view. At any rate, those days are gone and the next time a Republican senate torpedoes a perfectly fine candidate for the Court for the crime of having the same views as those of the Democratic President who nominated them, both of us will view it negatively, albeit for different reasons.

Besides, if you want to be dismissive with lines like "Reality", you're not exactly on the high ground when others quote Republican activists who DO in fact explicitly ask for the litmus test Den describes and you mock.

Hmmm, my disagreement with Den had nothing to do with republican activists. Since my point was that the current environment has allowed everyone to start acting this way it comes as no surprise to me that people are, well, acting this way. The point that Den was making was that, quote, Republicans have already followed suit and in fact, have been calling for a "litmus test" on SC nominees since the days of Reagan. I had said that Senate Republicans would begin to apply the same kind of litmus tests that Democrats were now explicitly talking about. If Den was correct that this had already happened how exactly did Justice Ginsberg get that 96 to 3 vote? Sorry, I think I'm on pretty solid ground here. No litmus test was applied to Ginsberg and Breyer.

I do not expect that to be the case in the future. I would not even be sure that a Ginsberg would be approved in today's senate and were there a Democratic President in office I rather doubt that she would even be offered up. Yeah, I see that as a poisoning of the process.

Doesn't matter that she's not a judge. Doesn't matter that she has no record to speak of (indeed, that's a plus.)

It's worth pointing out in this context that she has the same judicial experience (and therefore record) prior to her appointment as Joseph Story, John Marshall, William Rehnquist, Earl Warren, Salmon P. Chase, Felix Frankfurter, and Byron White. Combined, since it's fun to play with the number zero.

No experience, no clear-cut legal opinions, no real signs of brilliance (legal or otherwise). Roberts didn't thrill me, but he certainly showed ample evidence of intelligence and even thoughtfulness. Miers has shown neither -- her only dominant attribute is unflinching loyalty to Bush.

I partially agree with this, not because I think she's unintelligent, but because I lack information one way or the other.

I am curious why there's been such a knee-jerk "She's not qualified" response. Is it because she was never an appellate judge before her appointment? That didn't seem to stop Rehnquist or Marshall. Was it because she went to SMU instead of an Ivy League or Stanford law school? Robert Jackson didn't even graduate from college, but served 13 years on the Supreme Court (with one extended vacation in Nuremberg). We seem to be taking a sort of Potter Stewart "I know it when I see it" approach to judicial qualifications, which I find somewhat unsatisfactory.

I am curious why there's been such a knee-jerk "She's not qualified" response. Is it because she was never an appellate judge before her appointment?

No judicial experience OR constitutional law experience OR high level administrative experience OR record of rigourous analytic legal thinking.

Take one of the above (or, preferably more than one), and I wouldn't have think she's unqualified. The lack of ANYTHING...is a lack of qualifications.

It's not so much what she hasn't done as what she has that has my attention.

Since Dubya became Governor of Texas, she's been working for him, including one amazing stretch of state residency in order to keep Cheney as the VP. Since Dubya reached the White House, she's been by his side as consistently as Laura.

This does not bespeak independent jurisprudence to me...

David, for me, it's her utter lack of any of the qualifications prior justices without judical experience have had, combined with her close association with the current president. Just about every justice that has sat the court in the past has had some indication that they were capable of administering the law at the highest level. Ivy League schools, back when they meant something, top of their class. Nationally significant, recognized legal figures. Top, respected legal minds. Figures of national prominence that played roles in key cases of national import. Governors, legislators. This is the past of the SCOTUS, and this is the bar that any candidate is held up against. Miers not only is totally lacking when compared to the history and the present of the justices that have served, but she also has close professional, political, and personal ties to the sitting president. There's every chance that, once appointed, Miers will succomb to the responsibility of the position, leave all her ties and obligations in her chambers, and sit the bench in the tradition of previous justices. There's also a significant risk that she's already pre-decided her position on several key matters of national significance, and that she's informed the president of how she intends to rule on those cases, when they come before her.

The combination of those 2 aspects of this nomination exemplify why the Constitution requires the consent of the Senate, the very reason why the founders put in a system of checks and balances.

As for Roberts' confirmation, I'm certain that some votes against him were petty partisan bickering. But I'm just as certain that many of them were intended to send a message to the president. I don't think Roberts confirmation was ever in doubt, so a "no" vote against him was bound to be ineffective. However, by amassing a large number of "no" votes, the Senate sent a message to the president that he wasn't going to be able to nominate just any old stooge to the court. Which message, it seems, was either missed, or Bush has decided to test the Senate. In this case, I hope they demonstrate just how little power the office of the President has in this case.

Bill,

I don't consider you dishonorable. That is, to a large degree, a matter of personal morality. I've known some criminals who were honorable in their own fashion, so it's not like I consider it a virtue that stands on its own anyway.

Um ... thanks, I think.

I think I've got to question your whole premise here. If a vote against a nominee is somehow considered "poisoning the process", doesn't that logically imply that you think every nominee should pass unanimously? If so, what the heck is the point of Senators even having independent judgements and opinions?

As a (hypothetical) Senator, part of my job is to reflect the wishes and opinions of my constituency -- and if a large fraction of my constituency has a strong opposition to the nominee, then I think that does more harm to the process than a simple "no" vote does.

Do you think Ashcroft should have been confirmed 100-0? Gonzalez? Rice? Bolton? Clarence Thomas? If not, what makes the votes against them fine and the votes against Roberts "poisoning the process"?

(For that matter, do you also think the 3 Republicans who voted against Ginsburg were as venomous as these 22 Democrats who voted against Roberts?)

Hypothetically, suppose Rice were to step down as Secretary of State and Bush were to name ... oh, Ann Coulter. Should the Senate just go ahead and respect Bush's wishes on that?

Basically, I'm rather confused about what your position is about Senate confirmation votes and at what point a vote against a nominee is okay vs. "poisonous."

That said, I personally could not in good faith vote down a person because they simply espouse perfectly legitimate political views that happen to be contrary to my own

Two points:

1) "vote down" and "vote against" are not synonymous. As Bobb's pointed out, it was an absolute gimme that Roberts was going to get confirmed, so the vote against was not going to be a serious threat.

2) This implies that in the event of, say, a liberal Democrat holding the White House and a Senate that was skewing 80-20 Republican, you'd expect every reasonably qualified nominee to be confirmed without incident. If that's legitimate ... well, full marks for idealism, but I can't see it ever happening, be it in this era or in some bygone one.

The reason the Hollywood Blacklist was wrong isn't because the people who got blacklisted weren't Stalinist sympathizers--at least a few were--it was because it's wrong to do that to people in a free society.

I agree, but I don't see the validity of the analogy. Nobody's talking about a blacklist here or anything close.

I think it's a slippery slope--if we accept that qualified people should be denied a spot on the court because of partisan politics, where so we draw the line?

A valid question. I hate to get into schoolyard tactics here, but I think the question is just as legitimately asked to the Republican senators who blocked dozens of Clinton judicial nominees with obvious qualifications.

I think we see votes in different lights. I see a vote as something expressing the individual's honest opinion -- and if Senator X disagrees so strongly with a nominee's opinion that he/she considers them questionable for the court, that is X's prerogative. You're phrasing your statements such that every vote is nothing other than partisan bickering. Isn't there room for someone to come to a principled conclusion that someone is wrong for the position for reasons other than "not qualified"?

I would also take issue with your characterization of Ginsburg as a "very liberal judge". I don't think we've had a truly liberal judge -- the political opposite of Antonin Scalia, say -- on the Court in my lifetime. She's left of center, yes -- but not hard-left to the extent that Scalia and Thomas are hard-right.

Hmmm, my disagreement with Den had nothing to do with republican activists.

Unfortunately, Den's original point *did* include them, which makes this ring a bit hollow. People call for litmus tests all the time. Even leaving aside pundits like Buchanan, Coulter, etc., what about Tom Coburn? Orrin Hatch?

Sam Brownback has already come out and said he's having difficulty supporting Harriet Miers because his conversations with her show her to be insufficiently committed to overturning Roe v Wade. What on Earth is that if not a litmus test?

Your point doesn't really invalidate Den's. Republicans can be and have been *calling* for litmus tests for as far back as the Reagan era. Whether specific senators have answered that call is a separate question.

I would also like you to name a Democrat who has explicitly spoken of a litmus test, since I don't personally know of one. A referenced quote would be helpful.

TWL

Whoops. The first statement above about the Hollywood blacklist was Bill's, not mine, and I apparently forgot to italicize it. My bad.

On a different note, though -- does hearing the recurring litany of "she's had as much experience as Rehnquist did!" about Miers remind anyone else of Dan Quayle's (in)famous comparison to JFK in the 1992 campaign and debate?

TWL (is no Jack Kennedy)

"If Den was correct that this had already happened how exactly did Justice Ginsberg get that 96 to 3 vote?"

Simple: because Bill Clinton consulted with Senate Republicans before formally naming her as his nominee. In other words, she passed the GOP's litmus test before her name was even floated publically, thus ensuring a smooth and uneventful appointment.

--R.J.

Sasha: One really interesting question I've heard come up is who has the burden of proof? Or more saliently, does the nominee and President have the burden to show why someone should be confirmed, or does the Senate have the burden of showing why someone shouldn't be confirmed? I don't mind allowing the President some leewau in civilian appointments (because incompetent appointees can always be removed from their positions), but with a lifetime appointment, the onus definitely lies with the President.

Thomas Jefferson on "advice and consent":

The Senate is not supposed by the Constitution to be acquainted with the concerns of the Executive department. It was not intended that these should be communicated to them; nor can they therefore be qualified to judge of the necessity which calls for a mission to any particular place, or of the particular grade, more or less marked, which special and secret circumstances may call for. All this is left to the President. They are only to see that no unfit person be employed.

It may be objected that the Senate may, by continual negatives on the person, do what amounts to a negative on the grade; and so indirectly defeat this right of the President. But this would be a breach of trust, an abuse of the power confided to the Senate, of which that body cannot be supposed capable.

Was that Jefferson piece on advice and consent regarding SCOTUS nominees? It doesn't sound like it.

Although it does say "no unfit person be employed." Miers could be fit for the job, but there's no way to determine that, as she's only held positions of trust that required her to act in one particular person's selfish interests. Just about every other Justice has demonstrated some capability to perform a role where the greater interests of society must be wieghed. Miers totally lacks that demonstration. And since this is a for life position, you can't afford to make a mistake.

What's the context for the Jefferson quote? Because on its face, it would most definitely not apply to a Supreme Court nomination, as it states, "The Senate is not supposed by the Constitution to be acquainted with the concerns of the Executive department", since this is a matter for the judicial part of the government.

If a vote against a nominee is somehow considered "poisoning the process", doesn't that logically imply that you think every nominee should pass unanimously?

No, not at all. Nobody should vote for an unqualified nominee, regardless of their political beliefs. But unless the nominee is unqualified I don't think it's proper to effectively blacklist them. Ginsberg's margin of victory seems to me to have been wholly proper and right, even though many who voted for her did so knowingthat they would disagree with her eventual rulings.

A President should be expected and have the ability to nominate qualified people who follow their hilosophy.

Do you think Ashcroft should have been confirmed 100-0? Gonzalez? Rice? Bolton? Clarence Thomas? If not, what makes the votes against them fine and the votes against Roberts "poisoning the process"?

If one thought they were unqualified, vote against them. If one thought that they were qualified but wanted to vote against them to make a statement...that seems pretty low to me. Civility has its place in all this, or at least it used to. There have been claims that some of the people on Bush's short list rquested that they be taken off because they don't want their families to get dragged through the garbage that goes with Supreme Court nominations and if that's true we are goint to lose the services of decent folks.

A valid question. I hate to get into schoolyard tactics here, but I think the question is just as legitimately asked to the Republican senators who blocked dozens of Clinton judicial nominees with obvious qual You might feel that it's ifications.

Absolutely. Me, I think it was probably an abuse of their senatorial powers. You might think it expressing the individual's honest opinion. I can see a big problem if everyone does this though--why should ANY of Clinton's choices have passed, if enough Republicans didn't like their politics? We can't let ourselves get to the point where the only way to get judges is to have one party controlling both the senate and the presidency.

As for whether or noth Justice Ginsberg is liberal...are there many examples of her being on the conservative side of any recent rulings?

Unfortunately, Den's original point *did* include them, which makes this ring a bit hollow. People call for litmus tests all the time. Even leaving aside pundits like Buchanan, Coulter, etc., what about Tom Coburn? Orrin Hatch

Den's original point??? I think the original point was the one I made, about the senate. Den brought in activists which, while undeniably true, wasn't what I was talking about. What activists, of any ersuasion, do is far less important that what the senate does. Activists can say anything they like but as long as Senators ignore them it doesn't matter much. I stand by my point: if there were litmus tests when Ginsberg and Breyer were up for their votes they would not have gotten the margins they did.

Sam Brownback has already come out and said he's having difficulty supporting Harriet Miers because his conversations with her show her to be insufficiently committed to overturning Roe v Wade. What on Earth is that if not a litmus test?

yeah, well I did say that Repubicans were going to follow suit and it looks like I'm right. Notice that I'm not happy about it either.

Your point doesn't really invalidate Den's. Republicans can be and have been *calling* for litmus tests for as far back as the Reagan era. Whether specific senators have answered that call is a separate question.

yeah, but that was the question I was talking about. If it's important to hear me say it I'll gladly say it--some Republicans have been calling for a litmus test since the days of Reagan. And unfortunately, those calls are now being answered, in large part I think, because of the open calls for litmus tests from Senators on the left. There was a time when Senators would condemn the very idea of litmus tests but not any more.

As for democrats who have called for a litmus test, off the top of my head I recall something about 6 Senators saying that they would vote against Roberts unless he gave unequivical support to Roe v Wade. Senator Cantwell even conceded that it could be considered a litmus test. Senator Schumer has certainly all but called for litmus tsts, though I think he's smart enough not to have used the actual words (but as you point out with Brownback, what's the difference?)

Well, here's another one: Joseph A. Califano Jr., "Yes, Litmus-Test Judges", Wash. Post, Aug. 31, 2001. At least it's refreshingly unambiguous.

Simple: because Bill Clinton consulted with Senate Republicans before formally naming her as his nominee. In other words, she passed the GOP's litmus test before her name was even floated publically, thus ensuring a smooth and uneventful appointment.

Um, since she was openly pro-choice, how exactly did she "pass" the supposed pro-life litmus test?

Seems to me the only litmus test she passed was in being a good judge. Which is the ony one that shoudl count, to my way of thinking.

I suspect that the GOP were happy with Ginsberg since the alternative would have been somebody like Professor Lawrence Tribe.

If a vote against a nominee is somehow considered "poisoning the process", doesn't that logically imply that you think every nominee should pass unanimously?

No, not at all. Nobody should vote for an unqualified nominee, regardless of their political beliefs.

Okay, but then the obvious question is "unqualified by whose standards?" If Roberts, who everyone agrees has a perfectly fine legal mind and a solid intellect, also had a belief at the core of his being that the the 13th and 19th Amendments were illegitimate and should be repealed, thus returning voting to the land of white males, I don't think it's a stretch to say that tips the balance over to "unqualified". There are certain values that are at the core of this nation, and if one sees a nominee as not sharing them it's not hard to turn that into a legitimate argument that they're not qualified.

Different senators of different political stripes will disagree over what values those are, of course -- but that's why I think it's wrong to dismiss the no votes as somehow poisonous.

You say Ginsburg's margin of victory seems fine to you. Don't you have as many harsh judgments for the three Republicans who voted against her as for the 22 Democrats who voted against Roberts? If not, why not?

If one thought they were unqualified, vote against them. If one thought that they were qualified but wanted to vote against them to make a statement...that seems pretty low to me.

As long as we're talking about "low" and "dishonorable" and "poisoning the process," let's talk about the Miers nomination. Bush is apparently letting James Dobson in on all kinds of big secrets about Miers' legal leanings, yet refusing to give equal information to the senators whose job it is to determine her fitness. That's far more manipulative of the process and far more detrimental to the process's future than any single "no" vote, so where's your outrage for that?

There have been claims that some of the people on Bush's short list rquested that they be taken off because they don't want their families to get dragged through the garbage that goes with Supreme Court nominations and if that's true we are goint to lose the services of decent folks.

In general, I would agree with this. In the case of this administration, which has made dragging through the mud a routine action against anyone who speaks against them, I frankly file it under "too bad, mofos -- you made this bed." That's not especially civil, granted, but it's human.

We can't let ourselves get to the point where the only way to get judges is to have one party controlling both the senate and the presidency.

So far as I can tell, we're already there. I agree it's not a good thing.

And last I checked, this whole system was expressly designed to prevent a president from nominating someone with ideals too extreme on either side of the line, but instead someone moderate enough to get at least some support from both parties. Clinton understood that -- Ginsburg and Breyer are nowhere near as far to the left as someone like Scalia (or Roberts, from appearances) is to the right. (That's also because Clinton isn't especially liberal himself, at least in the political sense of the term.)

As for whether or noth Justice Ginsberg is liberal...are there many examples of her being on the conservative side of any recent rulings?

I didn't say "liberal", I said "very liberal" -- and I'll stick to my original claim, thanks. Can you give any examples of her being Scalia-like in her dogmatism?

Your point doesn't really invalidate Den's. Republicans can be and have been *calling* for litmus tests for as far back as the Reagan era. Whether specific senators have answered that call is a separate question.

yeah, but that was the question I was talking about.

Fine, but then it would be nice if you'd treated Den's position as not relevant to your question rather than dismiss it with "here's reality." As you say, it's useful when civility is part of the process.

TWL

Don't you have as many harsh judgments for the three Republicans who voted against her as for the 22 Democrats who voted against Roberts? If not, why not?

yes, I have as many harsh judgments for the 3 as I do for the 22. That gives the Republicans around a 7 to 1 advantage but there you are.

That's far more manipulative of the process and far more detrimental to the process's future than any single "no" vote, so where's your outrage for that?

I'm not for the Miers nomination, based on what I've seen so far. In fact, most of the anti-Miers attacks have been from the right, which is why Bush is being forced to try to placate people like Dobson. I think Bush has every right to say whatever he wants to Dobson. The senate has every right to ask Mr Dobson what was said. Where's the problem? If Dobson was told that she would vote certain ways on certain issues, let's hear about it. I think it would be a dangerous move to do so and an indication of just how badly this nomination was thought out.

(Incidentally, for those who insist that it's the Republicans who have a litmus test--most conservatives assume that Miers is anti-abortion. they are still mostly willing to reject her. How is this reconciled?).

In general, I would agree with this. In the case of this administration, which has made dragging through the mud a routine action against anyone who speaks against them, I frankly file it under "too bad, mofos -- you made this bed." That's not especially civil, granted, but it's human.

Well, that's one way of doing it. I would point out that smearing a person just because they were nominated by someone who is a smearer themselves is of rather questionable justification. But it comes down to a question of what it is that you truly find objectionable; smearing people or just smearing people you like?

I didn't say "liberal", I said "very liberal" -- and I'll stick to my original claim, thanks. Can you give any examples of her being Scalia-like in her dogmatism?

Well, if she always rules on the liberal side of things I don't know why it would matter if she was "very" or not. Same result. Just out of curiosity, what is it that keeps her from being "very" liberal? What's her flaw?

And I'm surprised that you didn't challenge me to do what I'd asked you to do--cite any recent rulings where Scalia came down on the "liberal" side of a ruling. Which, actually, I could do, as opposed to demonstrating her "scalia-like dogmatism" (which is a pretty subjective thing). The fact that I can almost always predict where Ginsberg and Scalia will end up on a ruling is what makes me call both of them "very" in their philosophies. But now we're quibbling about semantics.

Fine, but then it would be nice if you'd treated Den's position as not relevant to your question rather than dismiss it with "here's reality." As you say, it's useful when civility is part of the process

If Den was offended by that I apologize. I wasn't trying to imply that he was out of touch with reality. But this strikes me as pretty thin skinned. Do you get this upset when a liberal claims to be a member of the "reality based community"?

But again, Den, if I came off as being snarky toward you I'm sorry. I enjoy your posts. Put a few years as an appellate judge under your belt and I'll even support your nomination to the Supreme Court. :)

yes, I have as many harsh judgments for the 3 as I do for the 22.

Thank you.

That's far more manipulative of the process and far more detrimental to the process's future than any single "no" vote, so where's your outrage for that?

I'm not for the Miers nomination, based on what I've seen so far.

If I may say, that's an awfully mild response considering how much you've been lamenting the anti-Roberts votes as irrevocably degrading how justices get evaluated. As I've mentioned before, it's sometimes difficult to take claims of evenhandedness seriously when problems of equivalent merit get vastly different levels of response. (Admittedly, you may not consider the Miers stuff I mentioned a problem of equivalent merit, but if that's the case I for one am curious as to why.)

I think Bush has every right to say whatever he wants to Dobson.

So do I. That's a straw man, however, as I never said otherwise.

The basic problem is that he can't give a wink and a nod to Dobson and then hours later base his entire case to the Senate on "trust me, folks, I've looked into her soul and she's much cooler than Vladimir Putin was when I looked into his." It's not only sleazy, it's downright insulting ... and for once, I'm pleased to note, the public and the Senate appear to have had that reaction as well.

I would point out that smearing a person just because they were nominated by someone who is a smearer themselves is of rather questionable justification.

I'm aware of that. What part of "it's not especially civil, but it's human" didn't come across clearly?

And I regret, and object to, smearing those individuals. I do not, however, regret the fact that the Bush administration is now actively worried about having its people smeared. I'd much rather they be actively worried about impeachment and criminal charges, but I'll take what I can get.

I didn't say "liberal", I said "very liberal" -- and I'll stick to my original claim, thanks. Can you give any examples of her being Scalia-like in her dogmatism?

Well, if she always rules on the liberal side of things I don't know why it would matter if she was "very" or not.

You defend your wording and "well, that's the question I was really asking," I have to ask that you respect the same on my end.

The difference in "very" is philosophy. I don't believe that all conservatives think American society would be better off sticking to laws passed in the 18th century. I believe Scalia does. I'm honestly not sure what the equivalent would be on the liberal side.

Just out of curiosity, what is it that keeps her from being "very" liberal? What's her flaw?

No flaw -- just generally moderate rulings that IMO strike a balance between extreme liberal and extreme conservative positions, albeit closer to the former. I don't consider nuances to be flaws.

One ruling I'm sure you disliked from her is one I did as well: the Kelo v. New London ruling (if I'm remembering the name correctly), a.k.a the eminent domain one that caused a firestorm earlier this year. I wouldn't call that one "very liberal" so much as just plain nuts, and I'm glad a lot of state governments have been stepping in to change things locally.

And I'm surprised that you didn't challenge me to do what I'd asked you to do--cite any recent rulings where Scalia came down on the "liberal" side of a ruling. Which, actually, I could do

I'd be interested in seeing that. I suspect I could come up with one or two cases where he surprised me as well.

And saying you can predict where they'll end up on a ruling suggests predictability, but that's not necessarily the same thing as being "very" anything from a philosophical POV. It also, I hope you'd agree, is strongly a function of what sort of cases the court winds up agreeing to hear in the first place.

Do you get this upset when a liberal claims to be a member of the "reality based community"?

(a) I'm not particularly upset.

(b) No, I definitely don't, since among other things the phrase is being used sardonically in response to that famous Bush-administration-staffer quote about how the "reality-based community" was passe in the light of the new imperial Pax Americana regime that created its own reality. (It was Ron Suskind's article in the NYT magazine last year.)

TWL

(Incidentally, for those who insist that it's the Republicans who have a litmus test--most conservatives assume that Miers is anti-abortion. they are still mostly willing to reject her. How is this reconciled?).

Easily. They're concerned that she may not be anti-abortion enough. Brownback has all but said that explicitly.

TWL

Easily. They're concerned that she may not be anti-abortion enough. Brownback has all but said that explicitly.

Yet they were happy with Brown, who has far fewer assurances in that regard. Tis a puzzlement, given the assumptions some are using.

If I may say, that's an awfully mild response considering how much you've been lamenting the anti-Roberts votes as irrevocably degrading how justices get evaluated.

I get nailed for dropping a "very" and you feel ok using "irrevocable degrading". Well, ok. If it sounds mild it's simply because I don't know Jack Squat about Miers, other than I could have named a few dozen people I would have expected to see nominated before her. She may blow people away at the hearings (assuming she gets there, which I don't) and knock her critics on their asses. she does have the good fortune of being questioned by a number of Senators who are not half as clever as they think they are so we will see.

I try not to be too knee-jerk in my deeming someone unfit for a job--these are real people after all. Right now I haven't seen anything to impress me but given the lack of information I'm not going to immediately say I KNOW she's unfit. Am I being too fair here?

As I've mentioned before, it's sometimes difficult to take claims of evenhandedness seriously when problems of equivalent merit get vastly different levels of response. (Admittedly, you may not consider the Miers stuff I mentioned a problem of equivalent merit, but if that's the case I for one am curious as to why.)

I'm sorry, what exactly were the problems of equivilent merit? I don't recall and can't find the reference. (If you mean the Dobson stuff, that seems more like a problem with the Bush administration's handling of the nomination, not a problem of the nominee herself).

I'm on the record as saying that both Ginsberg and Brown are fine jurists who were equally worthy of approval based on their ample qualifications. I think I can back up my "claims" of evenhandedness, at least in this case.

One ruling I'm sure you disliked from her is one I did as well: the Kelo v. New London ruling (if I'm remembering the name correctly), a.k.a the eminent domain one that caused a firestorm earlier this year. I wouldn't call that one "very liberal" so much as just plain nuts, and I'm glad a lot of state governments have been stepping in to change things locally.

You and me both, brother. Just my opinion of course, but I don't find the fact that it was the liberal judges who supported the Kelo decision all that surprising. Government trumps property rights. I'm glad that many liberals such as yourself found the decision as outrageous as Scalia, Thomas, O'Conner and Rehnquist did.

Personally I found the decision both "very liberal" and "nuts" and I don't automatically equate the two. (One could also claim that the decision is also "far right". This is no surprise. Space is curved, so if you go far enough in either extreme you're bound to meet. At least, that's what I remember from my Physics class which is why they don't let me teach physics.)

By the way, how have things worked out with the new school? Is Jersey treating you well?

First of all, no I wasn't offended by Bill's reply to my statement. I only wish I hadn't been so busy lately in my offline life to reply more often here.

As to Bill's question about litmus tests from Republicans and Ginsburg getting a 97-3 approval vote, there are several points to be made about that:

One is one thing that I usually try to be clear about, but I guess in rattling off my previous post at the internet cafe and that's to avoid referring to "Republicans" or "Democrats" as a single monolithic group. Certainly, most of calls for a litmus test on the right have come from Republicans (Coulter, Buchanan, Dobson) who are outside of the Senate. I will acknowledge that the GOP Senators have done a better job than the Democratic Senators in avoiding applying a litmus test to candidates. Brownback's recent statements, however, seem to indicate that this is changing.

I do however, stand by original assertion that at least some Republicans do very much expect that a Republican president will appoint a pro-life justice and that is a litmus test.

Also, things were a bit different ten years ago. For all the acrimony that Clinton's opponents had towards him personally, he was at least enough of a professional politician to know when he needd to cut deals with the opposing party to get things done. Indeed, Orrin Hatch has said that he was the one who first suggested Ginsburg to Clinton. And while she may be a liberal (I'll let others argue over what consistutes being "very" liberal as opposed to just "liberal") and pro-choice, she has been critical of the logic used in justifying Roe v. Wade. In other words, she was a liberal the GOP Senators could live with.

Getting back to Miers: I realize that other justices have not had any prior experience on the bench, but I believe most of them at least had a history of legal scholarship or landmark trial experience to show that they have the necessary legal expertise. And while the Constitution doesn't spell out any qualifications to be an SC justice, the assumption has always been that these are supposed to be the best and brightest legal minds in the country.

Miers therefore strikes me as another Clarence Thomas: A mediocrity chosen because she fills a particular slot and she holds the right views, rather than her vast body of legal experience. Indeed, I think her lack of a paper trail was considered a strategic strength in getting he past the Democrats.

As it stands, I can't feel very positive about her when Bush makes the fact that he's "looked into her heart" as the primary selling point. His track record on appointing cronies hasn't been all that good lately.

TWL made a point but I think he tripped over a pile of hyperbole: I would also take issue with your characterization of Ginsburg as a "very liberal judge". I don't think we've had a truly liberal judge -- the political opposite of Antonin Scalia, say -- on the Court in my lifetime.

Unless you're in middle school rather than teaching it, you've overlapped with William Brennan and Thurgood Marshall. One could also argue that Harry Blackmun counts, certainly by the end of his career, although I would file him under "bad" justice rather than "liberal" justice.

This raises a definitional question more perplexing than "qualified," above. What characteristic of a liberal judge do you think Ginsberg fails to exhibit? That's not an idle question-- she actually meets the poli sci definition of "conservative" as one who believes in gradual change. Ginsberg is on record saying, "Measured motions seem to me right, in the main, for constitutional as well as common law adjudication. Doctrinal limbs too swiftly shaped, experience teaches, may prove unstable." However, ordinary English usage equates "liberal" with center-left ideology and "conservative" with center-right; by those definitions, Ginsberg clearly appears to be on the liberal side of the spectrum; she's certainly a polar opposite of Scalia. From your discussion with Bill, I infer that you think she's too centrist to be considered liberal, but the fact is that very few successful people in American public life are very far to the left; there hasn't been a viable socialist movement in this country since the early 1920s, and in terms of economic and social policies this country has been sliding to the right since FDR died. (Civil rights has been the "liberal" victory of the last half century, and honest Republicans will admit that the party was on the wrong side of that debate back in the day. On behalf of my people, I apologize.)

What I'm trying to say is that "liberal" is a relative term, and that Ginsberg is as liberal as any viable American politician or statesman today. (I say "viable" because I don't think someone like Ramsey Clark is a valid counterexample.) If Ginsberg isn't considered "liberal," then the term is so restricted as to be useless in American discourse.

It probably undermines my posturing as the blog's legal-scholar-in-residence when I misspell "Ginsburg" through an entire post. O for an "edit" function.

Den,

I'm not all that reassured by the "looked into he heart" comment either. Didn't he say that about Putin?

I think she's toast...but I have to remind myself never to underestimate the ability of politicians to screw up a sure thing. If one Senator gets too smug and she hits back with a well delivered rejoinder she could come off as a sympathetic character. Ollie North managed to make a whole career out of a situation like that. The bar has certainly been set very low, for my expectations anyway.

If I may say, that's an awfully mild response considering how much you've been lamenting the anti-Roberts votes as irrevocably degrading how justices get evaluated.

I get nailed for dropping a "very" and you feel ok using "irrevocable degrading".

Last time I checked, that's what poisons do -- degrade the body's ability to function, usually irrevocably. Don't blame me if the synonym to what you wrote isn't appealing. :-)

I try not to be too knee-jerk in my deeming someone unfit for a job--these are real people after all. Right now I haven't seen anything to impress me but given the lack of information I'm not going to immediately say I KNOW she's unfit. Am I being too fair here?

No, but that wasn't my point. My concern is the horribly cynical way in which the nomination is being HANDLED by the administration, which is giving no more information to the Senate other than "trust me, I've looked into her heart" while simultaneously giving reassurances of unknown detail to people like Dobson. That's the part that I think is far more damaging to the process than any simple "no" vote could ever be, and that's the part I was hoping you'd comment on.

As I've mentioned before, it's sometimes difficult to take claims of evenhandedness seriously when problems of equivalent merit get vastly different levels of response. (Admittedly, you may not consider the Miers stuff I mentioned a problem of equivalent merit, but if that's the case I for one am curious as to why.)

I'm sorry, what exactly were the problems of equivilent merit? I don't recall and can't find the reference. (If you mean the Dobson stuff, that seems more like a problem with the Bush administration's handling of the nomination, not a problem of the nominee herself).

But that's my entire point, Bill -- the way in which this nomination is being handled is itself damaging to the entire nomination and confirmation process. That's the "problem of equivalent merit", and I find it really disappointing that you seem to be downplaying all of this stuff while bringing down lots of condemnation on 22 senators.

I'm on the record as saying that both Ginsberg and Brown are fine jurists who were equally worthy of approval based on their ample qualifications. I think I can back up my "claims" of evenhandedness, at least in this case.

I assume you mean Roberts above, not Brown. And I'm not questioning that opinion; I hope the clarification above helps with that.

As for Ginsburg and whether Kelo was "liberal" or not -- I think here we're getting into different strips of liberalism. Just as there are economic conservatives, social conservatives, and undoubtedly other categories I'm neglecting to mention, there are also ways to be liberal on social issues, economic issues, both, or neither. One probably could make a case that Kelo hits the "economically liberal" category, but IMO taken to an absurd extreme. It ain't my shade of liberalism, that's all I can say.

By the way, how have things worked out with the new school? Is Jersey treating you well?

Things are working out about as well as one could expect for the first year at a new place: a few bumps here and there, but generally reasonable. I'll be glad when I reach my second year there, though. It's been very, very busy -- hence my absence 'round these parts since Labor Day. This week's been a bit less crazy due to things like PSAT's and Yom Kippur.

And New Jersey ... is New Jersey. :-) And I can say that, having grown up here. Some things I definitely like, some things making me miss California. Seeing family more in the last three months than in the preceding three years = good. Not having a decent bookstore or music store within a 10-mile radius = not so good. Being able to own a home = good. The NJ DMV = surprisingly not as bad as I'd been led to expect. Katherine walking = good and exciting, and exceedingly tiring for her parents. :-)

TWL

I don't think we've had a truly liberal judge -- the political opposite of Antonin Scalia, say -- on the Court in my lifetime.

Unless you're in middle school rather than teaching it, you've overlapped with William Brennan and Thurgood Marshall.

Honestly, I'm not even sure the two of them are as far to the left as Scalia is to the right, but those are certainly good examples.

(And not only am I not in middle school, but I haven't taught middle school for several years now. HS juniors and seniors, at least this year.)

This raises a definitional question more perplexing than "qualified," above. What characteristic of a liberal judge do you think Ginsberg fails to exhibit?

I'm not sure I can really answer that (though I do thank you for not referring to it as "what's her flaw?"), but I agree that it's a very good definitional question.

From your discussion with Bill, I infer that you think she's too centrist to be considered liberal, but the fact is that very few successful people in American public life are very far to the left;

I think that's part of my characterization, actually. It's not currently possible for Scalia's polar opposite to be on the court these days, for precisely the reason you mentioned.

What I'm trying to say is that "liberal" is a relative term, and that Ginsberg is as liberal as any viable American politician or statesman today.

I'm going to agree with the former but not the latter. I don't think she's as liberal as, say, somebody like Dennis Kucinich -- and I would in fact call him "viable." I'm open to seeing evidence to the contrary, though.

It probably undermines my posturing as the blog's legal-scholar-in-residence when I misspell "Ginsburg" through an entire post.

I'm glad you said that. I was starting to wonder whether (a) I had it wrong, or (b) this was some secret conservative conspiracy I couldn't verify or understand the intent of. :-)

TWL

Even Wikipedia makes note of the frequency of the Ginsberg/Ginsburg confusion.

I figured you were busy. One reason I wanted to stay in my current school was that I didn't want to have to start over again. Even after nearly a decade of teaching going to a new school is like that first year again.

If I seem more upset by the Roberts vote than by the Miers nomination its because the litmus test problem will be dogging us for the next president and the ones after that, while one hops that no administration will ever bollox up a nomination this badly again. In fact, rather than make the process worse it might help--do you think that anyone could look at how this is going so far and really think that THIS is how to do it? Assuming Miers quits, I'll bet the next nomination will be as close to careful and by the book as can be done (too bad they can't nominate Roberts twice).

I'm not all that reassured by the "looked into he heart" comment either. Didn't he say that about Putin?

Yeah, and that didn't work out too well either, didn't it?

Just as there are economic conservatives, social conservatives, and undoubtedly other categories I'm neglecting to mention, there are also ways to be liberal on social issues, economic issues, both, or neither. One probably could make a case that Kelo hits the "economically liberal" category, but IMO taken to an absurd extreme. It ain't my shade of liberalism, that's all I can say.

Given that the net result is to take land from working class people and turn it over to wealthy commercial developers, I don't find it an "economically liberal" decision at all. It's a morally wrong decision, but it is technically correct on the law: The Constitution does not have any restrictions on the definition of "public use" of land, so it means whatever the government says it means. So to my mind, it's actually a strict constructionist decision, though none of the justices on the court who claim to be strict constructionists will admit that.

I think what Tim is getting at here though is that there are many degrees of left and right in America and that Scalia and Thomas are so far to the right, that you'd have to appoint a full blown, dyed-in-the-wool socialist to the court to get their equivalent on the left. And that's the problem. We're so used to think of the Democratic party as the party of the left that we Americans have lost sight what a true leftist is. The truth is, the Democrats, with their mushy ideas about regulating business to "even the playing field" would be considered a conservative or at best, a centrist party in most of Europe. Socialism, of the kind still practiced in places like Finland and Sweden, is dead in America.

And New Jersey ... is New Jersey. :-) And I can say that, having grown up here.

You have my condolences. :)

I'm going to agree with the former but not the latter. I don't think she's as liberal as, say, somebody like Dennis Kucinich -- and I would in fact call him "viable." I'm open to seeing evidence to the contrary, though.

I wouldn't call the guy who bankrupted Cleveland as "viable" although he is probably the most prominent example of an extreme leftist in the Democratic party today.

If Roberts, who everyone agrees has a perfectly fine legal mind and a solid intellect, also had a belief at the core of his being that the the 13th and 19th Amendments were illegitimate and should be repealed, thus returning voting to the land of white males, I don't think it's a stretch to say that tips the balance over to "unqualified".

Why? If he said that he'd act as though those amendments didn't exist if they were relevant to a case he was considering, then, he's be unqualified, but how does having extremely stupid personal views make one unqualified to read a law and determine if it is in violation of the relatively simple language of the Constitution?

I personally believe that the 17th Amendment should be repealed, but if the world went insane and I somehow found myself on the Supreme Court, and I faced a case where a state had tried to go back to the old "Senators are nominated by the state legislature" system, I'd have to decide against the state. They're doing what I believe is right, but it's not the job of a judge to care about what is right.

Personally, I couldn't care less if a Justice was a judge, or even a lawyer. If they've shown the ability to read lawyer-speak, a basic grasp of logic and reason, and the understanding that the job only entails reading the Constitution and determining whether or not a law conflicts with it.

If I seem more upset by the Roberts vote than by the Miers nomination its because the litmus test problem will be dogging us for the next president and the ones after that, while one hops that no administration will ever bollox up a nomination this badly again.

Not if it works. If it somehow works and Miers makes it onto the court, I fully expect future administrations to be every bit as dickheaded with their nominees.

Now, if this truly does backfire on them, then maybe it will help the process. One can but hope.

TWL

Den,

I think what Tim is getting at here though is that there are many degrees of left and right in America and that Scalia and Thomas are so far to the right, that you'd have to appoint a full blown, dyed-in-the-wool socialist to the court to get their equivalent on the left.

Thank you. That (and the rest of the paragraph) is exactly what I was trying to get at; I was just not doing a particularly clear job of it.

I'm going to agree with the former but not the latter. I don't think she's as liberal as, say, somebody like Dennis Kucinich -- and I would in fact call him "viable." I'm open to seeing evidence to the contrary, though.

I wouldn't call the guy who bankrupted Cleveland as "viable" although he is probably the most prominent example of an extreme leftist in the Democratic party today.

If he's viable enough to get into the presidential debates and speak at the nominating convention, I'd say that qualifies.

TWL

Den wrote:
The Constitution does not have any restrictions on the definition of "public use" of land, so it means whatever the government says it means.

That's kind of absurd, isn't it? The Constitution also doesn't define the word "no", but the government can't arbitrarily decide that it means "yes". I mean, they can, and they could order lots and lots of dictionaries that define "no" as "an affirmative response", but that doesn't change what the Constitution says, any more than the fact that "loco" means insane (colloquially, anyway) changes the meaning of the phrase in loco parentis.

Public use means public use, and whether or not lots of new factories (or whatever they're planning to build in New London) will benefit the public, they're not going to be used by the public. Some basic infrastructure falls under this phrase, but that's about it. The fact that Kelo v. New London wasn't the first case to inappropriately translate "public use" to mean something that it doesn't actually mean still doesn't change the original meaning (which is what a strict constructionalist would want to abide by).

If he's viable enough to get into the presidential debates and speak at the nominating convention, I'd say that qualifies.

All you need to do is raise enough money to achieve. I consider viable to be mean, "has at least a snowball's chance in hell of ever being elected to office again."

Robin, I believe you are mixing up the Spanish and Latin definitions of the word "loco." In Latin it means, "in the place of."

As for New London, IIRC, the plan was to build some kind of shopping center/office complex, so the argument was that it would be something that the public would use and the increase of the tax base would benefit the community as a whole.

Now, I agree with you that the common sense definition of "public use" is that it's something that the member would have free access to, such as roads or schools, but common sense and the law are often at polar opposites.

The fact is, the Constitution only states that governments cannot take private land without due process and just compensation. It doesn't say what the government may or may not do with it once the land has been seized, so a strict reading says that so long as the property owner was paid, anything goes.

Now, I'm not justifying the ruling, only explaining what I think, in my layman's opinion, is the legal logic behind it. Kelo wasn't a unique case. Municipalities have used eminent domain to seize land for private development before and the Kelo ruling as consistant with previous court rulings on this subject.

The solution to this problem, though, is not to rail against the courts, but to call on your state and federal representatives to demand a change in the law to restrict the usage of eminent domain.

Robin, you're exhibitin way too much common sense when you look at public use. Although there's at least rumblings in various legislatures that also seem to be at least discussing the same common sense application of "public use."

I see the current trend to allow a public use taking along the lines of trickle down economics...give the big companies tax breaks, and they'll re-invest in themselves, thus creating new jobs, better jobs, which means less poverty and unemployment for the community overall, right? Of course, when the companies CEO then takes the tax break and pockets it as an "executive bonus," well, we know where all that leads.

So is the idea of taking privately owned land used for single family residences, and forcing a sale through condemnation and turning it over to Target. That Target store (and attachments) will generate 10 times the tax revenue the homes would have, not to mention provide numerous jobs. The conversion from private residential to commercial is overall, good for the public. Which then opens the door for converting low-density single family homes to high-density multi-family townhouses.

There's an implied public benefit, which is translated into "public use," in order to get to the leap that government has a right to do this.

And it'll continue, so long as voters keep the legislators that keep allowing it to happen in office.

as for the question of what makes a candidate unqualified.

what if you had a candidate with an excellent legal pedigree, say, Dean of the school of law at Harvard and author of dozens of widely read books on constitutional law.

now, say that person is an avowed socialist. say they have been prominent in anti-war movements and hold to a belief in passivism that doesn't even allow for violence in self-defense.

could you see how some conservatives (and even those who pass for liberal in congress) might consider this person to be unqualified based on their personal views?

[i]"Textualism should not be confused with so-called strict constructionism, which is a degraded form of textualism that brings the whole philosophy into disrepute. I am not a strict constructionist, and no one ought to be--though better that, I suppose, than a nontextualist. A text should not be construed strictly, and it should not be construed leniently; it should be construed reasonably, to contain all that it fairly means." --Antonin Scalia, "Common Law Courts in a Civil Law System."[/i]

http://pedantry.fistfulofeuros.net/archives/000615.html

Den wrote:
I believe you are mixing up the Spanish and Latin definitions of the word "loco." In Latin it means, "in the place of."

I was mixing them up (though I wasn't really aware of the loco/crazy etymology), but I was doing so to provide a parallel to the Court's mixing up the actual definition of "public use" with the Bizarro-land definition of it. Possibly not a good parallel, but still, that was my intent.

Now, I'm not justifying the ruling, only explaining what I think, in my layman's opinion, is the legal logic behind it. Kelo wasn't a unique case. Municipalities have used eminent domain to seize land for private development before and the Kelo ruling as consistant with previous court rulings on this subject.

First, isn't legal logic an oxymoron?

Second, I know that Kelo doesn't stand alone, and that if you look at the actual definition of "public use" and compare it to the current legal definition, Kelo actually didn't add that much to the gap between the two. That is the reason that I'm a big constructionalist myself. I want every single court decision to be based on the words written in the Constitution (preferably with the Justices using a dictionary contemporary with whatever clauses or amendments they're examining). Using only precedent allows the Constitution to be stretched beyond all recognition.

I compare it to doing carpentry work. One of the first things I learned from my dad was that you can measure and cut the first board, then use that first board to measure for all subsequent boards that're supposed to be the same lenght, and you'll be alright. However, if you use the first board to cut the second, and the second to cut the third, and so on, you'll quickly find that you're way off the mark.

The solution to this problem, though, is not to rail against the courts, but to call on your state and federal representatives to demand a change in the law to restrict the usage of eminent domain.

While I absolutely think that we should call on our state and federal representatives to demand a change in the law, I also feel that it's completely appropriate to rail at the courts, because they're not doing what I believe is their job. Namely, I think that they should be restricted to determining whether or not a situation X violates the law as the law is written, not as they think it should've been.

If the court thinks that increasing tax revenue is good for the community, that's fine. They can include in their ruling a note to that effect and hope that a legislator follows up on it, but they can't change the law to suit their whims. It's not public use, and that's all the Constitution allows for (Well, more accurately, that's all the 5th Amendment to the Constitution allows for).

I'm aware that my opinion on how the system should work (according to the Constitution) is a far cry from how it actually does, by the way. I've never felt particularly beholden to The Way Things Are Done, though.

Bobb wrote:
Robin, you're exhibitin way too much common sense when you look at public use.

That may be the first time anyone here (or anywhere, actually) has ever implied that I had any common sense to exhibit.

And it'll continue, so long as voters keep the legislators that keep allowing it to happen in office.

Sadly, I suspect you're right. That's not how it should be, though, since one of the major raisons d'etre of the Supreme Court is to stamp out legislation that contradicts the Constitution.

nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

i believe this is the part of the 5th amendment referred to.

let's look at this based solely on what the Constitution actually says.

well, if you accept that Kelo falls under public use, then the only argument is whether there was just compensation.

if you don't think it was public use, then this falls under the "deprived of life, liberty, or property" part, and the only question is whether there was due process of law.

and so it falls to the local law. where there local or state laws defining when the government may force an individual to sell property? were they adhered to? that is the only issue from a strict constructionist stance.

Second, I know that Kelo doesn't stand alone, and that if you look at the actual definition of "public use" and compare it to the current legal definition, Kelo actually didn't add that much to the gap between the two.

Nor did it bring the two any closer together. And that's the problem. You and I would look at "public use" and see things that are publicly owned like courthouses, schools, and roads, but a lawyer would look at it and see a chicken.

I compare it to doing carpentry work. One of the first things I learned from my dad was that you can measure and cut the first board, then use that first board to measure for all subsequent boards that're supposed to be the same lenght, and you'll be alright. However, if you use the first board to cut the second, and the second to cut the third, and so on, you'll quickly find that you're way off the mark.

A good analogy and it does illustrate how our system of common law often works in practice: Prior rulings are used as a guide for future ruling in similar case and then these rulings influence other cases, to the point where we move very far away from the original text of the statute or Constitution. I think that was what was done in Kelo and in Roe.

While I absolutely think that we should call on our state and federal representatives to demand a change in the law, I also feel that it's completely appropriate to rail at the courts, because they're not doing what I believe is their job.

While it may be satisfying for you to do so, ultimately, it's fruitless because there's nothing you can say or do that will influence they're decision making process. And that's the way the system is set up.

Namely, I think that they should be restricted to determining whether or not a situation X violates the law as the law is written, not as they think it should've been.

I agree and unfortunately, judges on the left and the right are both guilty of this.

I'm aware that my opinion on how the system should work (according to the Constitution) is a far cry from how it actually does, by the way. I've never felt particularly beholden to The Way Things Are Done, though.

Well, unless you want to move to France, we're stuck with the Common Law system here. I prefer living in the real world by recognizing that precedent will result in rulings that seem to defy common sense, but the way to correct that is to write clearer statutes, not engage in the fruitless actively of casting stones at the courts.

"A good analogy and it does illustrate how our system of common law often works in practice: Prior rulings are used as a guide for future ruling in similar case and then these rulings influence other cases, to the point where we move very far away from the original text of the statute or Constitution. I think that was what was done in Kelo and in Roe."

This is why, back when I was clerking for a Federal Judge, I would always track back the precedent as far as I could. I'm pretty certain not all clerks make this effort, though.

indestructibleman pretty much states the current state of emminent domain law...the local jurisdiction, supported by state law, gets to determine what a public use is. And if the local jurisdiction decides that transferring property from one private owner to another private owner, the SCOTUS has stated that's ok, so long as due process and just compensation are part of the transaction. Both things which are also influenced, if not outright determined, by the local jurisdiction. It's like zoning. Local zoning commissions have a lot of authority to lay out the plans for their jurisdiction.

In Illinois, legislators are looking at ways to pass laws that limit this. Which I think is the appropriate level of government to do so. Anything the Federal government could enact would have enforcement problems...they'd have to tie to interstate commerce, and while that's a pretty broad base of power, it's hard to see how a totally intrastate transfer of property ties into interstate commerce.

Den wrote:
Well, unless you want to move to France, we're stuck with the Common Law system here. I prefer living in the real world by recognizing that precedent will result in rulings that seem to defy common sense, but the way to correct that is to write clearer statutes, not engage in the fruitless actively of casting stones at the courts.

Maybe I should clarify what I meant.

I agree with you that we should work through the legislatures to fix problems caused by judicial activism (on both sides), but I refuse to say that's all we can do. You're probably right, that my complaining about the use of precedence is ultimately fruitless, but I still speak out, in the hope that someone who is better suited for persuading others (Though I try not to, I tend to get a bit abrasive, I'm afraid) will pick up the torch and work through the system to actually fix the process.

I don't know if that clarified anything or not, but I hope it did.