October 27, 2005

Miers Withdraws

Holy moly kids! Harriet's out! Both the NYT and CNN have a breaking news banner.

Posted by binky at October 27, 2005 08:58 AM | TrackBack | Posted to Law and the Courts


The AP-sourced story on this is reporting that the reason for her withdrawl is related to executive privilege. In other words (to use the White House's words), it's the Senate's fault, 'cause they wanted papers that are private for the President, and they wouldn't pass her without them. So, in the interest of maintaining executive privilge, Harriet Miers reluctantly withdrew.

What a steaming pile of shit.

Posted by: baltar at October 27, 2005 09:26 AM | PERMALINK

Yeah, and as Orin Kerr notes, they've been setting up this bullshit narrative for a couple of days. They stood their ground on a bunch of Roberts documents and still got away with it.

The narrative was probably mutual. Either Dems would have used it as one of several pretexts to sandbag her nom during the hearings, or the White House would have to use it to explain her withdrawal.

It doesn't matter. She's out. And the good news is the Dems didn't have to blow too much political capital too get rid of her, leaving them ammunition, energy, and enough credibility to oppose the zealot I fear Bush will appoint next in an effort to palliate a now very suspicious base.

And I hope so, to be honest. Because that will be another gross miscalculation. As I noted on my site yesterday, he's currently losing 55-39 in a hypothetical election to ANY DEMOCRAT. And tomorrow, about half of the intellectual capital {shiver} in the West Wing is about to be indicted.

Posted by: moon at October 27, 2005 10:32 AM | PERMALINK

I am distraught. Those hearings - the possibilities. Seeing Sessions squirm, seeing Specter do his irritated and angry huffy, watching Cornyn try to coach her, watching her spew wordigs as weird as those in her writings, and letting all the rest of us enjoy the show. I am so very sad I won't get to see that.

Of course this reasoning rules out Gonzalez as the next nominee. So it'll be interesting to see who the president goes with when his administration is facing a serious ethical cloud.

Posted by: Armand at October 27, 2005 11:23 AM | PERMALINK

Actually, I think (given ethical standards problems, calls of "cronyism" and the ease by which Roberts and Bernanke got through) that there will be incredible pressure in the White House to nominate a moderate conservative with high credentials to the Court. However, the social conservatives, now having won the Miers victory, will be in full-bore howl for a non-moderate to fulfill 25 years of expectations. The larger question is which side wins?

Posted by: baltar at October 27, 2005 11:36 AM | PERMALINK

My guess is that the president will see he desperately needs friends and allies as lots of his closest pals face jail time - and that he'll see the "conservatives" as likely to be more loyal than any independent, principled moderates he might win over with an O'Connor-esque pick.

So we'll see an "I'll scratch your back" deal in which the religio-cons and the all-powerful-White-House-"conservatives" agree to get along. And so, we'll get someone like Judge Garza.

Posted by: Armand at October 27, 2005 11:40 AM | PERMALINK

Though I should throw into this mix that given the president's general tendencies the new choice is likely to be someone who's: 1) conservative, 2) given current events, someone who's not remotely ethically challenged, 3) likely to back the current administration and 4) close to, or someone who can get along well with, the president. So as to who exactly it will be - hard to say.

I figured it would be the AG, but given the reasons for Miers' withdrawal that seems impossible.

So now it's back to the list - Luttig, Alito, Garza, etc. Jones and Brown are probably block-able, so I doubt it will be one of them. And given the White House's public reasons for supporting Miers, which included that she'd bring a new type of experience to the Court, I wouldn't rule out them picking a law professor.

Posted by: Armand at October 27, 2005 11:48 AM | PERMALINK

As to the last comment - yes, there are former law professors on the current court - I just mean that for the next pick, they might again not pick someone who's currently serving on the federal bench.

Posted by: Armand at October 27, 2005 11:49 AM | PERMALINK

The problem is that the further right they go (in terms of judicial philosophy for the nominee) the more they risk the Dems putting up a major fight. That's a fight they might win (given the weakness of the Prez) and (perhaps more importantly) a fight that the Prez might want to avoid given the problems in Iraq, Plamegate, and approval ratings.

A more rightward nominee placates the base, but fires up more of a fight in DC. A moderate makes the DC fight easier, but gets the base out of DC more vitriolic.

I'm glad I don't have this dilemma.

Posted by: baltar at October 27, 2005 12:04 PM | PERMALINK

yeah, and i'm glad they do.

Posted by: moon at October 27, 2005 12:14 PM | PERMALINK

Well, that's why I think they might want to avoid someone super-ultra right with a record that could be a problem, and a presentational style that's not media friendly. So I still don't think that Brown or Jones or maybe even Luttig are the most likely choices. But they can certainly find someone who is very far to the right, without appearing to be so.

I think that's one reason why, say, an Alito nomination would be a great idea. He's a true-blue conservative, and the #1 thing known about him is his nickname "Scalito". But if you read his opinions or comments, they don't have the fire and brimstone rhetoric of Brown, Jones or Garza. So I'd expect they'll go with someone like that - someone the Right base will trust to be reliable, but someone who's not so scary on TV that the moderates will need to worry about the impression that nominee is making on their suburban voters.

Posted by: Armand at October 27, 2005 12:15 PM | PERMALINK

But if he nominates a real right-winger, will the Dems put up a fight? (And, what's the cost to the Prez, given all his other problems, if the Dems put up a fight and lose - is it worth winning a S.C. fight if it saps all of his other political programs?)

As you know, I'm not a fan of the Prez, but I'm beginning to be more and more concerned that the opposition Democrats are running on platforms that are simply different versions of "We're not Bush". That's not a legitimate policy alternative. A S.C. fight would be one way of staking out an alternative position ("Bush's S.C.nominee is far outside what one should believe, which is [fill in actual beliefs here]). If the Dems duck a real fight, that won't speak well of them electorally.

Posted by: baltar at October 27, 2005 12:27 PM | PERMALINK

As I was trying to write before, it all depends on how obvious the right-winger is about it.

And sure, I think it's perfectly appropriate for the Dems to put up a fight on these issues. The nominees get chosen, at least in part, because of their ideology. That being the case, the Dems can make an election issue of that if they like.

Posted by: Armand at October 27, 2005 12:53 PM | PERMALINK

It's not all about just how right-wing they are, but in large part about how right-wing they can be made to seem (which is clearly correlated to how right-wing they are). Part of a Democratic fight against any nominee would be a PR battle over how they are "cast" for the general public. A nut-ball who comes across as a friendly sort will be much more easily confirmed than a nut-ball who manages to seem like Santa Claus. Miers, we were finding out day-by-day, was more moderate than was originally thought - Dems might have been better off with Miers than whatever comes down the trail after her.

Posted by: baltar at October 27, 2005 01:14 PM | PERMALINK

OK, I swore I wouldn't comment today because of all the work I have to do, but Baltar, I don't see how anyone would have been well-of with Miers. She might be a nice person, but it's hard to see what she is better in comparison too. THe only thing worse would have been a frothing wacko incompetent crony.

Posted by: binky at October 27, 2005 01:17 PM | PERMALINK

Binky, I don't disagree. How do we know we won't get a frothing wacko incompetant crony, who happens to be publicly anti-Roe and thus engages the wingnuts an in a knock-down fight and is confirmed?

My point is that the Dems aren't showing any opposition-party leadership that allows then to control the agenda and tone (which significantly affects, for example, the sort of candidate to next wander down the pipe). If they don't start some leadership soon, we may get a frothing wacko incompentent crony.

Posted by: baltar at October 27, 2005 01:23 PM | PERMALINK

But this isn't the time to goad GW - he's probably still irritated with the James Dobson set for hurting his friend. I don't think the Dem leadership should go about huffing and puffing (particularly when they have virtually no power) and distract the president from the possibility of sending up someone else the Right won't like out of pure spite.

Not that I think it'll happen. But the president is surely vindicitive enough to consider it.

Posted by: Armand at October 27, 2005 01:38 PM | PERMALINK

alito's a solid guess. he's on the radar, but only for a day or two immediately before miers did anyone ever thing he'd actually be nominated, thus the machinery isn't really primed for him (as opposed to, say, mcconnell, luttig, garza, and jones, whom the left and PAC's are just lying in wait for).

alito's a yank, a jersey boy no less, he's impeccably qualified and tremendously poised. (indeed, the man damn near froze the blood in my heart just looking at me. seriously, interviewing with him was terrifying, by an order of magnitude the most intimidating interview i've ever had.)

he's presentable, poised, very very quiet (but on the bench, at least in a moot court context, he's neither retiring nor belligerent, but rather extremely bright and to the point (a sign of respect to competing students for whom some mock judges don't try so hard)) but articulate when required and so on.

it also occurs to me that he picked me out of a very crowded catholic university lobby at the aforesaid moot court (where my team didn't make the finals and so enjoyed his bench demeanor from the gallery) something like six months after our brief, awful interview. he's got the memory, that is to say, of a politician.

my predictions mean nothing, but he'd be an inspired choice, because he'd be _very_ hard to hurt based on his record and he'd probably be nearly as sharp in hearings as roberts would. when the suggestion was floated after rhenquist's death that another roberts was in order, alito was the first one i thought about. this administration tends to stick with what it perceives as working; roberts prompted a bit of grumbling, but it worked (and how).

Posted by: moon at October 27, 2005 02:10 PM | PERMALINK

Yep, I'd definitely say he's on the short-short list.

I'm also wondering about Larry Thompson today - just what does GW think of him? Has anyone made the case for Lillian BeVier to the president personally? What's in the background of Judge Karen Williams of the 4th Circuit? Etc., etc.

So many possibilities!

Posted by: Armand at October 27, 2005 03:14 PM | PERMALINK
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