On the New SCOTUS Nominee

Short Version: He supports strip searches of ten-year old girls without warrant.

We will have more Justices who are from Trenton, NJ, than who are of the fairer sex.

Long Version: You ever heard the phrase “it’s all over but the shouting”? This is what that meant. I respect that Sirota is more qualified and less-cronylike than Miers was, but that’s simply a matter of meeting the bare minimum qualifications for the office. It’s important that you have served as an actual Judge for a while, but largely so we can find out whether or not you believe crazy things like he has shown that he does.

In so far as it’s not really a question of whether or not to support him, it’s a matter of tactics now that he is in play. I’d say at least half the Republican Party has been waiting for this man for the past five years – and the other half is actually kinda scared. This includes men such as the Judiciary Chairmen, or the voters in Maine who send Olympia Snowe and Mary Collins to the Senate. They can be swayed, and it shouldn’t be hard to find evidence to do so.

And in fact, the distaste of him should be so obvious, that blaring out the scare factors regarding him should be the first response (the shouting in question). As my friend Dennis asked, why isn’t every blog simply stating the Short Version Quote Dennis provided me with.

Predictions

In light of the Supreme Court nomination and arguments going on about Democrats in congressional races, I thought it was apropos to make a few predictions about what I think will happen over the next two years.

1. Justice Alito will be confirmed despite a fierce battle where most of the public sides with Democrats but doesn’t care enough to convince the moderate Republicans to betray their party.

2. An 8-1 white male court with a solid 5 conservative votes will be as activist as Scalia or Thomas ever was, overturn Roe, and no longer be seen by liberals as a necessary supporter of constitutional rights.

3. Democrats will not get a majority of either the House or the Senate in 2006, despite winning the total popular vote in both cases.

4. The war in Iraq will get worse as both the public and Congressional legislation will try to contain it, and a powerful executive will continue it’s path of ignoring bad news and doing what it wants.

5. Liberals will come to outright despise the Constitution for holding back the popular will they feel supports them.

6. All this will be forgotten in the 2008 election, although it will cause Democrats to think more critically about the electoral college.

Time Zones

We switched from Daylight Savings Time to Standard Time Sunday night. Switch your clocks back an hour if you haven’t done so yet.

Talking about this the morning after, a couple amusing comments were made. One was a grape that it’s weird that Congress can just pass a law and declare what time it is.

Another was that it was really weird driving through Australia, because there were places that had 15 minute and half-hour time-zone changes. Which was clearly absurd.

No one particularly noted the irony of this contrast. You either need a unitary body with the power to decide these things for everyone at a whim, or you’re going to get local differences that hardly make sense.

In Response to Neil: Hackett v Brown 2006

Responding to Neil here. First of all, you gotta have EW comments, so your friends can respond on your blog without the same atmosphere as ezra's. I'm really proud of you for having a long conversation with Sirota about this and sticking up for party unity, but didn't feel like adding anything at this late date.

Anyway, I really like the first comment in response to your hackett v brown post. it kinda nails everything I think.

I think this primary is less about the candidates issue positions as it is about being able to beat DeWine. The differences between the 2 candidates on the issues is marginal at best, if you take Hacketts OH-2 and recent statements at face value.
http://www.removerepublicans.com/paulhackettissues.html
has a run down on core principles.

Healthcare ? No rookie Senator is going to be trailblazing the healthcare solution - it's how they would vote on someone elses that matters, and i think both Brown and Hackett would vote the right way.

the troubling thing I see right now is how Brown isnt handling the pressure too well.
Put asides his ham fisted entry into the race, and look at his recent oops
http://www.buckeyesenateblog.com/2005/10/oops_.html
As an example.

If you have spent any time following Ohio politics you would know the game plan that someone like Brown is going to face next year. It's the same game plan the GOP have deployed to great effect for the last decade, and the same one they are currently running against Reform Ohio Now. Brown makes a perfect target for this Weak, indecision, liberal, gays, guns, god.
http://www.buckeyesenateblog.com/2005/10/stop_it_youre_g.html

One only needs to read the Ohio papers to see he isnt going to get a clean run. The Sirota made up planted quote is an example of what Brown faces - Hackett doesnt have to charge "liberal" because the Ohio red press will do it for him, as they did.

Hackett is already getting incredible amounts of free earned media because of his persona and biography - he is clearly a candidate that the press likes to cover - he has that X factor that Brown simply doesn't.

Brown clearly has the edge in a primary right now, because of the money and his NE roots where the bulk of the Dem votes come from - the problem is neither of those qualities is enough for him to beat DeWine without further Ohio GOP meltdown - something which DeWine is somewhat removed from.

Finally the other thing Hackett brings beyond the fresh air is credibility on Iraq - and his strong stance on this issue is going to give further backbone to other democrats who are struggling to find a backbone and a voice on this issue.

It seems to me that if you are going to run a 2006 election on the basis of being a change agent then actually running a fresh strong candidate and not an established long time congressman gives that idea and theme more credibility.

If you want a hint at who the Ohio GOP want to face, consider what they are saying
http://www.buckeyesenateblog.com/2005/10/legitimate_thre.html

Mostly, i'm just immensely paranoid about the ability of any democrat to win in Ohio. We've been suffering from this "45% solid dem 55% solid republicans and so the republicans get to control everything" for a lot longer than the rest of the nation ( since early 90's, not including John Glenn, and neither of these guys are John Glenn, though Hackett's the closest.) Seeing another union Democrat who is not particularly exciting for the MSM (first time i've ever used that anachronym btw) run makes me already feel like another beautiful shot has been lost.

But as August 2nd demonstrates, I am underestimating the ability of Democrats in Ohio. Or maybe I just underestimated the ability of Hackett?

The biggest question is, would a post-primary Brown use his network to help Hackett win? Because it's pretty clear that Hackett's media persona with Brown's network is the best combination. Which is why that a primary would be so sad, because it makes that result pretty unlikely. Short of that, you get tough questions, like will Hackett be able to make his own network or find another? Will Brown find any traction with the media, or like most non-ultra-charismatic democrats, will his media image only deteriotate over time*? What's more important, the network or the persona? These are tough empirical questions, and there are reasonable sets of answers to them that suggest supporting either candidate.

I disagree with the "primaries are good for the party thing" in this case. Usually I agree with it a lot, especially in presidential elections. 2004 showcased Democrats and got them a lot of news attention, such that both members of the Dem ticket were household names well before summer. And I like open democratic (small d) debate. But the more local a race, they're less useful. In a presidential election, it's all about the best media persona, and it's clear that the whole party will band together to defeat the opposing party in the end. Here, a primary would hurt either winner: Brown would get attacks of being too far to the left (even if Hackett is angelic on this matter, this is simply the narrative that forms in a moderate v non-moderate primary, and it's all some pundits know to say). And Hackett would lose access to the network that helped him so much in 2005. So vigorous blogospheric (and partisan magazine!) discussions are desired... in order to head-off a primary. And Hackett and Brown are sitll buddy buddy enough that I think they are going to work something out eventually.

I mostly mentioned electability concerns. Well, yeah. A freshman senator isn't going to be responsible for creating healthcare. And Ohio is noOklahoma or Mississippi where once you're in office incumbency means a guaranteed long career. These guys will both be running serious re-election efforts every six years, and often having to run against a Republican presidential ticket that will likely carry the state. Post-election, it seems we know little about the behavior of either, except to say Hackett's pro-free-trade stance and authoritative voice on military concerns probably balances with Brown's more reliable record.

*I'm kinda confused by Neil here, since your enthusiasm for Edwards has shown how important charisma+populist message is. I had thought you had gotten the point that our atmosphere is antagonistic to economic-populist messages, and it takes a really charismatic leader to get them through.

They need a guarantee, but no promises

Liberal blogs are wondering what to expect now that Harriet Miers has “withdrawn”. (I agree with TAPPED here that really the media should call a spade a spade – Bush released her).

My feeling: more chaos. You see, there’s a fundamental contradiction going on. It went on with Roberts, but didn’t spiral out of control. For Miers it did spiral out of control. Here are the two parts:

1) There is a significant part of America that wants abortion illegal. It’s not simply a “litmus test” for Supreme Court justices. It’s not simply the only factor in SCOTUS justices at all. It is the only issue in politics, and everything else (taxes, war, healthcare) gets to take a backseat until that’s fixed. They’ve passionately supported Bush so far, and are as responsible for his reelection as anyone else. And unlike businessmen, they aren’t a small elite that can be secretly told they’ll get what they want through intermediaries like James Dobson; they are the public.

Now there are many reasons for the existence of these voters, most of which reflect perversions in our political system. For 15 years demagogues have played up this issue as responsible for society’s ills. It’s tied to general cultural changes. Deontologically speaking it’s a very strong narrative. And even if a freedom of privacy is in the the Constitution, the layman doesn’t believe that or understand how. And of course no attempts have been made to compromise.

2) But they are not a majority, and for a majority it is untenable to say “this person will vote to overturn Roe v Wade”. When you do that you’re clearly making a mockery of the a-political nature of the Supreme Court, and enough independents are disgusted by that that it wouldn’t be hard for the opposition party to derail that.

These voters have been battling for over a decade for this one shining moment, and there is no way they can get it. Whether a nominee is pro-choice or pro-life, they aren’t going to say so. And that uncertainty will scare the bejeesus out of these voters. It did when Roberts said Roe was “settled law” and it did with Miers. The White House tried to leak it out through aides that she was pro-life, but it just came across as sleazy and manipulative.

This is a tension that will affect whoever Bush picks next as well. Articles theorizing that it will be about Gonzales and his torture leaning or Hispanic-ness, or the strict-constructionalist credentials of any other nominee are misleading.

"Mob to take over $500 million liquor industry"

The Onion helps us celebrate the anniversary of the passage of the 18th Amendment. It made all alcohol illegal, which created such problems that it’s the only amendment to be directly repealed.

When looking on the noble history of the Constitution I think it’s important to keep episodes like this in mind. In our current political world the FMA was partly defeated by the argument that it would be bad to alter the constitution for something as trivial as the definition of marriage. There’s this idea that the Constitution should be only about the fundamental political rights and how our nation is governed, not the passionate cultural mores of the day.

But random cultural mores do work themselves in. At some time, the overwhelming majority of our country thought it would be a good idea to prohibit alcohol. Not just in terms of democratic law, but in a way that was almost irrevocable and completely universal. Enshrining it at the same level as the freedom of speech.

Whatever Will They Do

In order to gain perspective, everyone should read this on the Democratic Party and this on the Tory Party. (That’s in England. Where Labour leader Tony Blair won the past 3 elections. He’s on the left.)

England and America are probably the two most culturally similar countries to eachother that they could find. Yet in one country the media acts like the right is completely dead, and in the other the Dems have given up the ghost. The point being: people need to calm down.

The left here has lost a few elections on narrow tactical margins, and the right there has lost a few elections because they’re disorganized and the margins are getting narrower. These things simply happen. The problem is the media and pundit class equate “inability to propose legislation” with “powerless and lack of ideas” and then play up any story of the day to reflect that angle. It’s pretty ugly, and doesn’t reflect that things could switch back any day. There is no reason to believe in perpetual conservative government here, or perpetual populist/left government there.

And unfortunately, for certain views of democracy, it’s just as important that people believe in a vibrant opposition party as that it actually exists. The opposition has to act as a credible check against the majority so that the majority doesn’t do stupid and/or corrupt things. Even if the opposition controls 49% of government and may very well get elected the next term, if the meme of “oh those Democrats/Conservatives can’t do anything about what we propose” dominates the media and party leaders, then the party in power will do whatever they damn well please.

Snarksalot

Kind of interested in this NYT memo about the whole Judith Miller affair.

I wish we had dealt with the controversy over our coverage of WMD as soon as I became executive editor. At the time, we thought we had compelling reasons for kicking the issue down the road. The paper had just been through a major trauma, the Jayson Blair episode, and needed to regain its equilibrium. It felt somehow unsavory to begin a tenure by attacking our predecessors. I was trying to get my arms around a huge new job, appoint my team, get the paper fully back to normal, and I feared the WMD issue could become a crippling distraction.

So it was a year before we got around to really dealing with the controversy. At that point, we published a long editors' note acknowledging the prewar journalistic lapses, and -- to my mind, at least as important - - we intensified aggressive reporting aimed at exposing the way bad or manipulated intelligence had fed the drive to war. (I'm thinking of our excellent investigation of those infamous aluminum tubes, the report on how the Iraqi National Congress recruited exiles to promote Saddam's WMD threat, our close look at the military's war-planning intelligence! , and th e dissection, one year later, of Colin Powell's U.N. case for the war, among other examples. The fact is sometimes overlooked that a lot of the best reporting on how this intel fiasco came about appeared in the NYT.)

This explanation kinda explains everything that is wrong with the media today, and why politicians fear it so much. I don’t think the media is in horrible shape actually, which is why everything that is wrong can be encapsulated in one paragraph. Or rather one word: Sensationalism.

When war was looming, it was more fun to talk about the war and talk up panicky cases for war. When the war was here and a failure, it was more fun to talk up how horribly the administration failed and misled. Look NYT, over-criticizing the job afterwards does not actually balance out that you didn’t moderate your sensationalism at the time. Binging one day and purging the next are not two extremes that “balance out”.

The results? We get into sensationalistic endeavors (which is why Democrats hate the media) and we distrust the leaders who got us there (which is why Republicans hate the media). Oh, and lots of papers are sold in both phases.

Oh, and Neil has an adorable piece for how the Air Force isn’t explicitly in the Constitution. He seems to forget that all concerns about strict construction, originalism, or limited government don’t apply to the military. Especially in an emergency situation like the one we face today.

Lastly, since this blog is about the consequences of democratic institutions, I’m talking with N. Beaudrot about political science here. Sorta.

Dark and Light

The National Review is pondering the nature of the Harriet Meirs battle.

I actually think this is a profoundly significant signal in the ongoing -- and at times somewhat lamentable -- transformation of the GOP into a populist party. For example, I've written many times about how liberals don't understand that Fox News' popularity has had less to do with conservatism and more to do with populism than they are prepared to see. Liberals think they're the party of the people, so they tend not to understand populism when it comes from non-liberal quarters. But it is Fox's anti-elitism which pulls in the ratings more than its conservatism. This has been hard to see in the past because Fox's anti-elitism has generally been aimed at liberal institutions -- the New York Times, the ACLU, Harvard, etc. But anti-elitism and conservatism are not and never have been the same thing. And I do think this will be more obvious in the months and years to come. I think this new "elites" versus "heartlanders" trend is only going to grow within the ranks of the GOP. I can't say it's all bad or all good. But it is a major sociological change if the arguments within conservatism are now going to be about "loyalty" to our people (trans: our Party) instead of loyalty to our ideas.

I’m glad my analysis of the party transformations going on is agreed with by observers on the other side of the aisle. I really don’t get though why he says “somewhat lamentable” and “I can't say it's all bad or all good”. If I believed deeply in an ideology, which was supposedly the ideology of the ruling party, and in fact that party had a different ideology than they had professed to me and it looked like it would only get worse, I’d be upset. Especially if those ideologies had such profound contradictions as conservatism and populism do. I’d be doing everything I can to stop it, and not sitting idly by making snarky comments about an ineffectual opposition party.

(Of course, if you find "heartland" vs "elites" arguments to be disturbing ways to ignore real discussions then perhaps I would ask you, National Review, to stop making them.)

On the lighter side.

So with the Colbert Report premiering (and do check out that website, hilarious stuff there), many are happy that the Daily Show is basically twice as long. Except really, it’s that the first ten minutes of the Daily Show are four times as long. Now the first ten minutes are my favorite part, and Colbert was always my favorite correspondent, but… man the irony is thick. In fact, I think it makes it worth watching 15 minutes of Fox News every night just so you can appreciate the irony more.

Already things are being re-jiggered. They had Bill O’Reilly on TDS, and instead of the relatively friendly and “see look what we have in common” interview like a year ago, O’Reilly was fierce and TDS provided no corner. The audience booed, O’Reilly took cheap shots at Stewart (“all these guys do is laugh at the events! The world could end tomorrow, and he’d just sit there and giggle") and Stewart was just as harsh in his replies (“I do admit, we add insult to injury. But you sir, add injury.") in lots of ways that was uncharacteristic for the nice guy show. Do check it out.

Update: Ezra and Slate have some interesting criticisms. Something I would really love to see is a method of getting interviews for this show to be promising policy-advocates something they'd never get anywhere else: the most offensive, straw-man opponent to argue against on national TV to make themselves look correct, Colbert's persona.

Pobrecitaa Conservistas

Lot’s of blogs are busy ( Tapped LRC Sullivan, Yglesias somewhere) being amused at right-wing martyr Bruce Bartlett, who was just fired from his think-tank for writing a book criticizing Bush “Imposter: How George W. Bush Bankrupted America and Betrayed the Reagan Legacy”, as emblematic of the collapse among the intellectual right-wingers, regarding disagreement on discretionary spending and Harriet Miers.

For one: it’s one thing to be fired for writing an editorial critical of a Presidential decision. Then his employer, the National Center for Policy Analysis, would just be being petty. It’s another thing to write and publicize a book that outright calls the leader of your movement an “Imposter”. If a TNR writer had written a 90’s book called “Scumbag: Why Bill Clinton’s Ethics Are Stopping Liberal Programs” I don’t think he or she would have been appreciated. Of course, I realize that it is just de rigeur for controversial conservative tracts to pick extremely incendiary names (Treason, Slander, Driving Liberal Insane, etc)… but yes, when you have incendiary tactics, maintaining coalitions under stress is difficult.

I gotta say, the book’s title amuses me. During the Clinton years whenever I got in an argument over politics, I would bring up that the deficit increased vastly under Reagan, from less than a trillion to more than four trillion. The Republican-apologist would just blame the Democrats in Congress, making the whole thing a wash. Reagan had vision apparently, but no responsibility for carrying it out besides strident rhetoric. You have to ask yourself whether increasing military spending and lowering taxes is a good thing for the deficit if you aren’t going to be able to lower domestic spending. Or at least, any serious Republican in the 80’s should have.

But they didn’t, and then they got complete control of the federal government in 2001 and… it was just like the 80’s. Increases in military spending, tax cuts, and oddly unrelenting domestic spending. So what was Reagan’s legacy? The man was in power for 8 years, and not a single year did the government shrink as a percentage of GDP. And conservatives, ask yourselves, has anyone else been better? Bush I, Nixon, Eisenhower, none were known for successful small-government-ness.

In a more empathetic way of looking at things, I feel really bad for Bruce and many other small government conservatives. For liberals and engaged moderates, this has been a very frustrating interegnum between nice moderate liberal governance that will in the end try to lift people out of poverty and make the world a nicey-nice place. Many people might have died and lives ruined, but the liberal vision of government is still going to happen, and in fact as Ezra points out much of Bush's presidency has only confirmed that.

But small government conservatives are finally realizing, it's over. Whether it be an idiosyncratic betrayal, or just a fact that giving rich elites a great deal of power does not cause them to dial down the power, and small government causes simply are not going to even be feasible to propose for many years to come.

Hackett v Brown

In response to Neil’s questions on Hackett in the post below, I’ve been reading about the Hackett-Brown match-up. I feel bad for Hackett, because I’m pretty sure he really didn’t want to get in a primary battle and had a preference ordering: Run against DeWine > Don’t Run > Run Against Brown. So because of that, there are lots of posts about who would be better to run in Ohio, the respected liberal Congressman Brown, or the Iraq veteran. The most in-depth piece is at Prospect, by David Sirota.

Unfortunately, most of these posts seem to deal only with who will be better-equipped to win the primary. State organization, and factors relevant to it (money, union councils, etc) and liberal-ness certainly favor Brown in a primary. But that’s not the question. The questions are who would be a better a) Senator and b) match up against DeWine.

And I think in both cases it’s pretty clear it would be Hackett (especially if he had Brown’s machinery supporting him like he did in August 05). More moderate, more support from the DLC, more charismatic, and a more attractive message and unifying theme. The biggest thing Sirota mentions about Brown being better on liberal issues is that he’s led the fight against free-trade… which sorry, does not appeal to me, nor to the suburban voters of Ohio. (Ohio is heavily rust-belt and has as much reason to be upset at free-trade as any other state, but it continues to be an oddly unsuccessful issue for Democrats here as it is anywhere else in the nation; just ask Kerry, Edwards, or the West Virginia Democratic Party).

See, this isn’t handicapping about who will win the primary and telling the probable loser to clear out. This is about advising who should win the primary, and trying to tell the other to clear out.

There’s also a couple interesting ontological questions. Hackett did well in his organization because he had Brown’s organization backing him up. Does this mean without Brown he can’t do anything? Or does it mean Brown was the person at the time, and if it weren’t Brown, it’d be someone else? I feel it’s probably inaccurate to say against Brown he would have no other sources of support.

Oh, one last thing. Sirota’s explanation for why a 14-term liberal Congressmen won’t be attacked as an insider by the GOP:

Then again, it would be laughably ineffective for Republicans to try to label Brown an "insider." This is a guy who, for instance, has gone to battle against his own party by leading the opposition to bipartisan free-trade deals.

The only laughable thing about that is the idea that Republicans would withhold from labeling a Democrat an insider.

Constitutional Length?

My roommate asked me today why everyone’s new constitutions (Afghanistan, Iraq, EU) are book-length-features, when we could make due with two or so pages. This comparison has certainly been remarked upon in the rightblogistan, generally as a subtext for how much better we are.

I tend to think the short Constitution was from a naïve and rather good-willed time, and we are the exception not the rule. These days people are generally unwilling to not address political issues of key importance to them in their founding document. But does anyone else have any knowledge or ideas that might explain this?

Lochner Dissent No More

I'm increasingly amused when I read things like this from Tapped trying to figure out what Miers feels. In trying to read the tea leaves of what we can prove this person believes, no one is even pretending to make the distinction between "what is good policy" and "what is constitutional law".

It's something we supposedly fetishize when we discuss Oliver Wendell Holmes Jr.'s attitude on judicial restraint, or when nominees get to refuse to answer questions, that even if the Judge may personally like or dislike a law, they would only overturn it when it offends the Constitution. This may be true for some justices, but it's simply not true all the time, and no political actors believe it.

James Dobson, close ally of the President, recently said conservatives shouldn't be worried because he has reasons to believe she's good that he can't disclose. To him, her legal feelings on the validity of Roe v Wade are just window-dressing that coincide with her much more important-churchliness.

Which is I guess why it's hard for me to be an idealist, since it's so clear that people don't give tuppence to their ideals over practical goals, or even acknowledge that they could conflict.

Hackett Running for Senate

http://warrenreports.tpmcafe.com/story/2005/10/4/12433/3089

Remember when I said maybe Hackett wasn’t the best fit for the richest congressional district in Ohio?

Yeah, well he’s a great fit for the state of Ohio as a whole. So it’s good to hear he’s running. Mike DeWine is also a good guy (one of four Senators to back McCain in 2000) and so I gotta say I’ll be proud to have either of them representing me after 2006.

Technocrats or Moderates?

Ezra’s having an argument over whether to endorse Miers, who seems to not be a liberal nightmare. And from a policy perspective, I totally dig that. She doesn’t continue the Scalia tradition that scares many liberals. She does however continue the Michael Brown tradition of being an unqualified crony rather than experienced and decisive. Which I rambled “I’d rather a brilliant conservative than a mediocre crony.”

I think that’s a statement, especially when coming to the Supreme Court, that many people would disagree with (for my conservative readers, replace conservative with “brilliant liberal” and imagine I’m talking about Pres. Clinton). And yet, there are clearly positions that matter a great deal and we want technocratic competence before ideology. What are they?

So I see three options when discussing appointments by the other team:
a) brilliance is always more important than policy-moderation.
b) Policy-moderation is always more important than brilliance
c) It depends on the position.

For C, I’m kinda curious what people think what positions we should value competence or moderation more? And do you think our political culture can distinguish between the two, and find a need for moderate cronies on the Supreme Court while still putting brilliant biased technocrats in agency positions?

Cronies

Presidents appoint cronies. Yeah, it’s sad. And I really wish we could stop it, like having candidates discuss who their appointees might be before the election, not getting to swear them in without question afterwards. And I of course feel W has been worse on this than recent presidents, but it is not at all new. Really, this is how things are done and it’s usually unremarked.

Kennedy made his brother attorney general. LBJ put his personal lawyer on the Supreme Court, and tried to put him up for Chief Justice. Don’t even get started with Nixon. The fact is when you’ve just been made the most powerful man in the world, you generally don’t skimp for your friends. This is very sad, but true.

The thing about the Supreme Court, is simply that it’s for life. These crony appointments last more than just the political term, and there’s no chance to pass judgement on them. So the intelligentsia gets double-plus haughty saying they expected a well-respected technocrat or ideologue to get the job, not some mediocre friend for the past twenty years. But if a guy never appoints technocrats and experienced officials for anything else, why do you think this will be different? It’s just one more self-serving appointment out of many.

Either don’t make Supreme Court appointments for life, or have the gall to ask a nominee who they will appoint before they get elected. If we don’t switch to either, we’re going to see William Taft’s, Abe Fortas’, and Harriet Miers’ for the rest of the Republic’s span.

No, He is NOT

Can we please shut up about things like this

IS BUSH SECRETLEY PROCHOICE?

Miers won't be liked by Democrats and isn't liked by Republicans; she's a longtime Bush loyalist with no paper trail. Which may be why they picked her. While it's dropped off recently, there's long been talk about Karl Rove's single-minded obsession with constructing an enduring Republican majority. That means, among other things, ensuring that the right retains the power of backlash politics and doesn't, in triumph and ascension, lose momentum to the left. And one way to ensure that doesn't happen is to preserve Roe as something for the right's footsoldiers to eternally mobilize against, not let it be struck down so the left can arise to reclaim it.

I do not imagine that Republican-followers are that insanely stupid. Yes, it would be very much to the GOP’s advantage for them to be able to continuously rail against Roe v. Wade. And that is something I worried about a lot during the last election, that for some segment of the population they were running on the exact same platform as the previous election (abortion). But dangnamit, that does not mean they can avoid trying to overturn it when they get the chance, ok?

Miers Hype

Lots of thoughts on the new SCOTUS nominee. The three things you should read first are:

TLaura’s post on the embarrassing Bush, not the terrifying one

That is, Miers represents one side of Bush, and it's the relative good side -- the side that has Cheney rushing out on Limbaugh to calm the rubes, the bizarre, clueless, politically oblivious side, the self-absorbed but supremely un-self-aware, Loyalty Above All Else side. This was the side we saw mainly during the 2000 campaign and the early days before 911. Those were the relative good days, when the problems with Bush were mainly aesthetic. At the end of the 2000 campaign, The New Republic wrote:

If [Gore] loses on November 7, it will not simply set America on an ideological course that we consider perilous and unworthy of our best traditions. It will be a sign that we are not living in a serious age.

Ezra’s post mocking conservatives for following a dunderhead

Poor kids. They thought electing a cipher and surrounding him with conservative ideologues and Republican wisemen would result in a sort of Robo-Republican, a candidate genial enough to take office and suggestible enough to govern -- pun not intended -- right. Instead, Bush reacted as most small men in big boots do and surrounded himself with folks even less qualified than he. With his Spidey Sense tingling, Bush staffed his administration with a who's who of neocons grateful to come in from the cold and Texan loyalists eager to erase their regional insecurity through national actions. Classic spokes-and-wheel formation -- the connections and loyalty all flowed towards Bush, not the party or each other.

and Prospect’s post about Harry Reid’s meeting with Bush where they discussed Harriet

I personally think that I would like to see someone who has not had judicial experience. I think that we need somebody to go on that Court in the mold of the people on the Berger court, people who have not spent their lifetime holed up in some office writing opinions and reading briefs. One of the people that’s being talked about is Harriet Miers, his own lawyer. At the meeting we had with the president last week, we were in the office he has there; I was there, Frist was there, Leahy was there, and Specter was there, plus Andy Card and the vice president. I said, “The vice president got here in a very unusual way. He was chosen by you to find a candidate to be your vice president. You liked the person in charge of finding a candidate better than the people he chose.” I said, “I think that rather than rather than looking at the people your lawyer’s recommending, pick her.” ... The reason I like her is that she’s the first woman to be president of the very, very large Texas bar association, she was a partner in a law firm, she’s actually tried cases, she was a trial lawyer, and she’s had experience here. I could accept that. And if that fits into the cronyism argument, I will include everybody as a crony, but not her, when I make my case.

Anyway, reading these articles and comparing this to the Robert’s nomination I’m really not sure what to think. The going line for leftblogistan seems to be that Bush appointed an unqualified (anti-intellectual?) crony above a great deal of other factors. I would love to attack Bush along those lines, but a) clearly Sen. Reid was the one who first mentioned this unqualified person and b) Roberts fit neither the unqualified part nor the crony part that well. And of course c) I don’t think Bush is allowed to choose what cheese-spread to have on his sandwiches without the direction of his political advisors, let alone pick a SCOTUS justice all on his own. Also, I don’t particularly agree that he was “spoiling for a partisan fight” as the conventional wisdom apparently was, since eh, I think this team likes to pick fights they can win.

In which case I’d like to start off by saying that I’m kinda disappointed in Harry for going with an unqualified person, unless he knows something we don’t. Oh wait, Sen. Reid is pro-life. Sure he opposes Bush’s judicial nominations on many levels and has been a great party leader, but let’s just say this is the one scenario where you really don’t want to have someone who betrays your party’s policies. The Republican leadership is weak, they want to compromise, and Reid allows them to do that largely because he doesn’t fight for the most important issue to many judicially-focused Dems. That may be very unfortunate, for NARAL and whoever runs against Chaffee at least. Or if things go badly enough, for Reid.

Which leads to a distinction that I think many conservatives have glided past. Many members of the Republican party want to overturn Roe v Wade. Many members of the Republican party want a reduction in judicial activism and this “strict constructionist” stuff. These are not the same thing. During elections and news shows it’s easy for them to be allies that can pretend they are trying to accomplish the agenda of social conservatives through principled interpretation of the Constitution. But the fact is there are many Republican intellectuals and money-makers who primarily believe in the more federalist court, and there are many conservatives who would sell their grandmother to get rid of abortion (which, given what they view abortion to be, is perfectly understandable).

So what was Roberts? He was the federalist’s dream. A supremely qualified return to a humble judicial atmosphere. Of course, if you want a non-active court, turning over 30 years of precedent that most state laws are based around and has been affirmed in multiple court cases, is really not that good an idea. Roberts said this in his famous “Roe is the law of the land” answer, and those intellectual federalists just can’t see why the Christian-right isn’t happy since hey, at least they got a strict-constructionist.

Harriet Miers seems the opposite. No well-formed legal views about the political responsibility of the third branch, no classy arguments about what precedent means – just an explicit desire to get rid of abortion, and no qualms against voting that way on the highest Court.


PS: I’d also say read Andrew Sullivan as he has the best conservative round-up, but he’s spending the majority of his time chronicling an Army Captain who’s being sequestered(jailed?) because he spent the past 17 months trying to get to the bottom of the torture epidemic in Iraq and is now trying to go public. (Which really, is probably the proper priority of things but there isn’t anything this blog feels like saying on that except what I said here.)

Question

It’s politically centrist and hip to say that the Pledge of Allegiance reference to God is constitutional and you need to get over it. Even the Daily Show has mocked Neudow’s case. I don’t really buy the “it doesn’t matter” (every school child has to say it every day in view of their peers, and it’s irrelevant?), but the emphasis has been on how legitimate “under God” is.

Since a) a large majority of the country is Christian, and b) a very very large majority of the country is monotheistic, pundits (both right and center) make the claim that this isn’t about the establishment of religion in any absurd way and it’s perfectly ok. I can buy that I guess. My question (for anyone who feels that way and reads this blog) is, what’s the line?

Would it be unconstitutional for it to say “One Nation Under Jesus”? Maybe just “One Nation Under Him?” Where is the line exactly.

And of course, one needs to consider that writing the word God is a largely Christian thing. Deists and agnostics generally say god or have some other word. In Judaic tradition God should be written as His name, or as G-d. And in Islam you only use the proper noun for God, Allah, which doesn’t translate. (For instance, in Spanish a Christian would say they worship Dios, Spanish for God, but a Muslim would still say they worship Allah.)

PS: Yes I know this may sound pro-constitutional, but remember I first got on the anti-constitutional bandwagon by seeing how much people whole-heartedly disregard the constitution, and why it’s generally for good reason.