The Happy Carpenter

The role of the courts is "to recognize rights that are supported by the Constitution and history, but the power to create novel rights is reserved for the people through the democratic and legislative processes

Althouse:

So said the intermediate appellate court in New York yesterday, as it reversed a lower court's ruling that would have authorized gay marriage in New York City.

More progress.  At least one appellate court gets it.

"The moral hazard of the new media is clear," says columnist Jim Pinkerton, an aide to President George H.W. Bush.

I for one am getting a little sick & tired of Bush-41 officials and advisors coming out of the closet to criticize Bush-43.  I didn't vote to reelect Bush-41 because I thought he was too much of an establishment statist.  During the Clinton years, I said in the future history would lump Bush-41 in with President Clinton rather than President Reagan.  And I still say so.  Here's the rest of the quote I put in the title:

"The moral hazard of the new media is clear," says columnist Jim Pinkerton, an aide to President George H.W. Bush. "They can turn any discussion into a donnybrook, and any nomination into Armageddon."

What a bombastic blowhard.  The moral hazard of the new media my ass.  The 41ers were always afraid to fight, to take it to the mat.  Always too eager for realpolitik at the expense of principle and backbone, of which they showed damn little of either.  Witness their waiting 5-1/2 years to go public with the criticism of W-43 -- they were too scared to voice their supposedly deeply held convictions until the President's approval ratings dropped low.  Typical Old Repubicans.  Good riddance.

And Frankie, that goes double for Brent Scowcraft.

Hard ball thinking from Baseball Crank

The Baseball Crank is spot-on with his thinking about Supreme Court nominees, political in- and out-fighting, and Sun Tsu:

Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called "nuclear option" and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the "nuclear option"; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle - the Senate and the public.

Because the public's view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President's troops in the field. A second corollary is that "the public" includes all those forces outside government that influence elected officials - the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.

Score a BIG ONE for the good guys! Miers withdraws!

Yahoo news:

Miers Withdraws Supreme Court Nomination

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

"It is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House — disclosures that would undermine a president's ability to receive candid counsel," Bush said. "Harriet Miers' decision demonstrates her deep respect for this essential aspect of the constitutional separation of powers — and confirms my deep respect and admiration for her."

That is entirely legitimate on all counts.  That is also why it was a mistake to nominate her in the first place.  I call on the President to nominate a real and proven conservative for the Supreme Court.  That's a big reason why many of us voted for him in the first place.

And now this! The last straw!!!!!!!

Bush Infuriates Base By Imposing 9:30 Bedtime

  In a press conference that would ignite a passionate conflagration among core supporters, President Bush announced on Monday the nomination of Harriet Miers to the Supreme Court, and imposed a 9:30 bedtime.

  Conservative supporters reacted with near-unanimous outrage...

  It is believed Bush has been uninvited to several birthday parties...

Heh.  By 9:30 PM last night I had been asleep for 15 minutes.

Lileks is making fun of me

An internet institution, James Lileks of Minnesota is poking fun at me:

The wailing! The gnashing! The rending of garments! If the conservative reaction to Harriet Miers is any indication, Bush has no chance of winning a third term. The decision to appoint a relative unknown – or, given her proximity to the Bush inner circle, an unknown relative – has caused many on the right to open a vein and the let the despair flow out into the warm bath of misery, disappointment, and overextended metaphors. Why didn’t Bush clone Scalia in a dish and appoint him? Here, use some stem cells if you have to. Anyone but another Souter!

That’s the great fear on the right: Souterism. A mild-mannered cipher appointed by a Bush who dons the black robe and promptly starts to eat babies. Souter! How many times have you opened the door at Halloween and seen his face on a child’s mask? How many times have you waited in the doctor’s office, clammy with dread, waiting for him to slap the X-rays up on the wall and point to a grayish souter-shaped mass? Miers could turn out to be the conservative’s worst nightmare. She could regard the Constitution as a living document, still in its first trimester. She could, at this very moment, be in the attic assembling the shortwave she got while a member of the Resistance in Texas, dialing in Steinham One to report total success, repeat total success.

Or not.

Well, yes.  That is the great fear of the right.  Exactly.  And while Mr. Lileks, whose work I enjoy tremendously, goes on to make fun of me very well, his point essentially boils down to "Trust President Bush".

Which I do. 

But as President Reagan was fond of saying to the Chairman Gorbachev, in Russian, so often it's reported that Ol' Norway Head was sick of it,

Doveryay, no proveryay = Trust But Verify.      

Exactly!

A Trojan Horse -- but what flavor?

Harriet Miers is unknown to all of us except the President.  Thanks to the Elite's uniform opinion that prospective justices should not talk about how they might apply their judicial philosophy to concrete hypothetical cases, it really is not possible to find out much about a nominee like Ms. Miers.  Perhaps common sense will break out and Ms. Miers will consent to answer meaningful questions.  I believe she must because she has absolutely no track record or paper trail, no cases we can look at, nor even arguments on behalf of clients in front of the Supreme Court.

I believe the arguments against nominees to the Supreme Court answering meaningful & specific questions about relevant constitutional issues are wrong.  Because there are no constraints upon justices once confirmed, there is no reason for them to avoid answering specifics.  Nothing prevents them from saying, for example, "Roe vs. Wade is bunk" and then ruling on cases affecting Roe vs. Wade.  I don't care if the legal elites don't like the practice.  I don't care what John Roberts or Harriet Miers think about the designated hitter rule in baseball.  I want to know what they think about the constitution and the Supreme Court's role in it, and I want specifics to flesh out their judicial philosophy.

Especially in Miers' case.

George Will is right on target in his scathing op-ed today.

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons.

Some of Will's reasoning is typical beltway elite crapola from there on, but his "trust me" comment is right on target, absent real questions and real answers.  Will continues:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

President Bush's signing of the camapaign finance 'reform' bill was a huge error, IMHO.  And it didn't take long for the Law of Unintended Consequences to rear its ugly head. 

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.

Now, that's not necessarily true.  I don't have a problem with having a real outsider on the bench, someone with a truly fresh perspective on the constitution.  However, I'm not sure that any lawyer meets that test.  I'd rather have a CEO, or a Jesuit, or a scientist -- hell, maybe even a doctor -- if my goal were a fresh perspective.  Ms. Miers does not fill this role; she's just another lawyer.

Now, the main point in favor of the President's nominee is that he knows her well.  They may have spent many nights on the porch of the ranch talking about constitutional issues.  I don't agree with the comments of one of my readers, Rob Salkowitz, who said

...  But if you assume instead, as your pals on the Left always have, that he's concerned exclusively with rewarding his financial/political cronies, isn't much interested in public policy as it concerns either liberal or conservative ordinary citizens, and isn't really that bright, it all starts to make sense...

Assuming one knows the motivations of others is nearly always a mistake.  Better to look at the results of their actions.  Ms. Miers might be the next Clarence Thomas, but she might be the next David Souter.  We need to find out.  If the Senators can't find out for sure, then they would be doing the right thing to vote against her confirmation.

We'll have to wait and see.  This one is going to be very very interesting.

The President screws up again

Ouch!

First the steel tariffs, then campaign finance reform, then the farm bill, then highway bills, then the energy bill.  Now the nomination of Harriet Miers to the Supreme Court.  After the War on Terror, the most important decisions the President will make are his Supreme Court appointments and he bobbles it.

If you piss off everybody with your decision, does that make you a centrist?  The WSJ is not amused:

With the nomination of Harriet Miers to the Supreme Court, get ready for another passage from Hamilton to get similar play--this one from Federalist No. 76:

"To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure."

Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush's personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely.

Just what we needed.  Sheesh!

Meet your next Board Memeber of the Joseph H. Hirshhorn Museum and Sculpture Garden

What's the big deal?  What makes the Chief Justice of the United States different from the other Supreme Court Justices?  That's what I wanted to know, and that's what I found here via, again, Baseball Crank, who runs a nice blog even if he never gives me any linky love.

Summarized:

1. The Chief Justice assigns which judge among the majority will write the opinion.
2. The Chief Justice is in charge of a bunch of committees and such that set rules and salaries for the federal court system.
3. The Chief Justice is a member of the Smithsonian Institution, a pretty cool perk if you ask me.
4. The Chief Justice is in charge of any presidential impeachment trial, although Renquist kept a very low profile at President Clinton's.
5. The Chief Justice "has exclusive appointment power of judges on the Foreign Intelligence Surveillance Court.  The highly secretive court -- established in 1978 by the Foreign Intelligence Surveillance Act (FISA) -- presides over classified applications by federal law enforcement authorities seeking permission to conduct electronic surveillance anywhere within the United States."  This is a big one, and one we're very lucky to have a conservative in charge there.  Damn, imagine if a lefty was in charge of FISA -- might just as well not have it at all.
6. And of course, the Chief Justice "is named to the Board of Trustees of the National Gallery of Art and the Joseph H. Hirshhorn Museum and Sculpture Garden."
   

Foreign precedent

This was one thing I was worried about with the Supreme Court -- the growing use among lefties on foreign decisions to make law here -- but I needn't have worried about Roberts:

If we're relying on a decision from a German judge about what our Constitution means, no president accountable to the people appointed that judge and no Senate accountable to the people confirmed that judge. And yet he's playing a role in shaping the law that binds the people in this country. I think that's a concern that has to be addressed. The other part of it that would concern me is that, relying on foreign precedent doesn't confine judges. It doesn't limit their discretion the way relying on domestic precedent does. Domestic precedent can confine and shape the discretion of the judges. Foreign law, you can find anything you want. If you don't find it in the decisions of France or Italy, it's in the decisions of Somalia or Japan or Indonesia or wherever. As somebody said in another context, looking at foreign law for support is like looking out over a crowd and picking out your friends. You can find them. They're there. And that actually expands the discretion of the judge. It allows the judge to incorporate his or her own personal preferences, cloak them with the authority of precedent -- because they're finding precedent in foreign law -- and use that to determine the meaning of the Constitution. And I think that's a misuse of precedent, not a correct use of precedent.

Well, of course that's a misuse of precedent, but it's very nice to see that spelled out so clearly and succinctly.  I like the way, in Roberts' World, it is a bad thing to have more descretion for a judge.  Say what you want about the man, but Roberts sure can speak extemporaneously.

Thanks to Baseball Crank