Let the Games Begin....Judicially Speaking

[Prairie_Scouter]

I had a thought yesterday that I'd like to posit.

 

The elimination of Harriett Miers as a candidate for the Supreme Court didn't have as much to do with her qualifications or lack thereof, as much as the fact that Bush's conservative base couldn't count on her as a known conservative on the court.

 

The nomination of Samuel Alito was more an effort to consolidate the conservative base for the upcoming midterms elections than it was an effort to get the best qualified candidate on the Supreme Court.

 

The President, I think, picked this candidate knowing that it would result in the upcoming firestorm. It will in all probability consolidate the conservative base while further dividing the country along ideological lines. What a way to run a country

 

I would think you'd want justices at all levels that are brilliant, yet unbiased when they enter the courtroom. What's so bad about that?

[Hunt]

The truth is that hardly anybody REALLY wants an unbiased justice on the Supreme Court. What everybody wants is a justice who will decide key cases the way they think they should be decided. Heck, I'm not even sure what an "unbiased" justice is when it comes to something like whether Roe v. Wade should be overturned or not. Somebody from Mars who never heard of it before?

The Miers situation really lifted the mask, in my opinion. It should be obvious to anybody who was paying attention that the controversy over her nomination wasn't really over qualifications, but over whether she could be reliably expected to vote to overturn Roe v. Wade. Conservatives felt that they couldn't rely on the President's coded assurances, so they opposed her. Liberals felt that an unknown quantity was better than a known anti-Roe vote, so they didn't say much. The Bush Administration tried to save the nomination by pointing to her religious beliefs to suggest that she'd be an anti-Roe vote.

The result is that it's going to be very hard for conservatives to credibly attack Democrats for opposing Alito on ideological grounds. It's also going to be tough for them to argue that the impact of personal religious beliefs is off-limits. Sure, Alito is more qualified than Miers, but he wasn't chosen primarily on the basis of his qualifications--he was chosen because it can be reliably predicted that he will vote like Scalia.

If I were the leader of the Democrats, I would say this: "We're not going to waste time debating Judge Alito's legal qualifications. He's obviously qualified. What we're concerned about is whether it's in the best interests of our constituents for him to be elevated to the Supreme Court. If we determine that it isn't, we'll exert the power they have entrusted to us to stop it, if we can."

Unfortunately, I predict that both sides will waste endless time with wrangling about qualifications, ethics, and a dozen other sideshows, when everybody really knows what it is all about.

[Kahuna]

I'm pretty sure the Republicans are spoiling for a fight with the Democrats. I'm also pretty sure the Democrats, who have been acting like a bunch of spoiled brats, IMHO, will get their noses rubbed in it. The Republicans are in power, like it or not, and the Democrats aren't.

 

I, for one, would like an unbiased justice and I think it's entirely possible. As a lawyer, for instance, my own view is that Roe v. Wade is bad law. I cannot find anything in the Constitution that would support taking that decision away from the States. Personally, I like the law the way it is and believe it has saved a great deal of legislative boondoggling over the years. However, if I had been on the Court, I would have not voted with the majority in that case. That's what's meant by judicial restraint. You can decide based on what you believe the law is, not what it should be. (The above is not intended to start a discussion about Roe v. Wade, but just to illustrate that it is possible to choose constitutionality over personal feelings.)

[John-in-KC]

What would have been really neat to see, whether in Roe v Wade or even in Miranda...

 

"We believe we see a right (of the people) OR (of the States) here. The limits of that right are for the Legislative and the Executive to carve out. We stand ready to assist them in this."

 

Unfortunately, that would require a degree of cooperation not seen in that dismal Virginia swampland since Marbury v Madison.

[Prairie_Scouter]

I listen to what some of the Senators on both sides of the aisle are saying, and I wonder how some of them can say things with a straight face. Kennedy was practically beside himself yesterday trying NOT to say that it was going to be a really dirty fight on all sides. One of the Republicans, can't remember who, spent his sound bite talking about how they should be talking about Alito's qualifications for the Court. I wonder if he went into his office and started laughing out loud.

 

I feel badly for Miers in all this. We'll never know if she would have made a good Justice because the conservatives blew her away before she even had a chance to express herself in hearings. NOT because she wasn't qualified; that wasn't even an issue; it was solely because they couldn't count on her as a solid conservative vote on the Court. The President shouldn't have backed down; now the conservatives know that they are "the tail wagging the dog". One small step to unify conservatives, one giant leap to further divide the country.

[Hunt]

Keeping a straight face is an essential Washington skill. I look forward to the conservatives telling us that every nominee deserves an "up or down" vote. Except for Miers, of course--see, she voluntarily withdrew to protect executive privilege.

 

Alas, the Democrats are likely to go bananas over this story that Alito failed to recuse himself soon enough in some case involving funds in which he had investments. It doesn't really amount to anything, but they'll latch on to that (and anything else they can find) to avoid simply admitting that it's all about ideology. I continue to think the whole process would be better--at least more honest--if they would just cut the baloney and talk openly about ideology.

[Prairie_Scouter]

I agree, Hunt. It's going to be a mess of a fight, and the whole time, both sides will be dancing around the idea that it's all about ideology, as you say.

 

I kinda liked it better when the ABA was vetting the candidates. At least it had some sense of rhyme and reason to it then, whether you agreed with them or not.