Category: Politics


A frightening idea

tenco.jpgFrom a message to a conservative e-mail listserv:

I just received a suggestion from [name redacted] that Judge Roy Moore be nominated to the U.S. Supreme Court. What a great idea. Let’s all call President Bush and our congressmen, representatives and senators, supporting this suggestion.

It’s hard to think of a worse candidate. Whatever one thinks of Alito, Roberts, Souter, Scalia, Thomas, Ginsberg, Breyer, whoever — and I disagree with much about the politics Alito, and with various decisions and statements of each of the Justices — at least it’s clear that they all share a basic understanding of how the rule of law operates.

The same cannot be said for Moore.


1950s and 2000s Conservatism


Last spring I went to a talk by Phyllis Schlafly at the University of Alabama. It was the most entertaining evening I’ve spent in years, much better even than the O’Reilly Factor on a good day. And I left with an “I love capitali$m” poster, which is one of my prized possessions.

Ms. Schlafly did what I take to be her usual stump speech-–opposing judicial activism and, of course, feminism. She was plugging her new book, The Supremacists (about left-wing judges). She had some amusing lines. Something along the lines of, “Feminists are pushing their way into the military. Forty-five percent of women can’t throw a hand grenade far enough to keep from killing themselves. So I guess you can say that feminism leads to death. Ha, ha, ha.” I took the laughter to be a realization that her arguments in this case were laughable–a wonderful self-insight. I have a warm spot in my heart for people who don’t take themselves too seriously. It’s an appealing character trait, to be able to be not too serious. Wish I had more of it.

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Stealth Legislation

capitol-2a.jpgWant to pass a controversial law? Why debate it? Why discuss it? Why hold hearings about it? Just slip it into a massive budget bill that nobody could possibly vote against. And it gets through.

I don’t know if such a technique has a name, but I’d call it something like “stealth legislation.” It is the tactic of attaching a particular legislative measure to a bill that’s sure to pass. This what is happening with the 9th Circuit split. The 9th Circuit is a large unweildy federal court covering the entire West Coast. For years, proposals to split it up have been discussed, but little progress has been made. That’s because California accounts for the lion’s share of the cases, nobody wants to split off California into its own circuit court, and nobody wants to split California in half or into pieces. The problem has been difficult and there’s been a big struggle over resolving it.

But instead of debating the issue, of resolving it through a legitimate legislative process, some in Congress have chosen a different approach:

Their proposal to split the 9th U.S. Circuit Court of Appeals stalled in the U.S. Senate last year. So House Republicans have taken a new approach this year: Attach a split proposal to a provision for new judgeships and tuck it into a $35 billion spending-cut bill.

While the House voted last year to split the 9th Circuit, the Senate blocked a similar bill, with even some Republicans voting against it. So the latest split proposal is structured to sidestep debate in the Senate Judiciary Committee and discussion on the floor, reaching the Senate only in the budget conference committee.

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Another Note on the Influence of Bloggers

In response to Dan’s post on the influence of bloggers, Oren Kerr and Todd Zywicki chime in here and here. The discussion reminds me of a story that I recently heard. Each year, the Republicans in Congress have a retreat to the Greenbrier resort in West Virginia. This year one of the major themes at the retreat was the role of blogs in the 2004 election. In particular, most GOP Senators think that Daschle was largely brought down by local bloggers who played watch dog to the local, pro-Daschle press by highlighting positions taken in Washington that were to the left of his constituents. I don’t know that this blip has transformed itself into any deep and abiding interest (and hence influence) on the Hill. Still, the message at Greenbrier seems to have been that politicians ignore the blogosphere at their peril.


Are Bloggers Having an Influence Inside the Beltway?

blogger2.jpgFrom the National Journal’s Beltway Blogroll Blog, Daniel Glover takes a skeptical look at the influence of blogs:

This year, bloggers are the figurative freshmen of larger Washington. They have won enough respect in certain pockets of America to claim occasional seats at the policymaking table — but they are definitely back seats.

That reality has been abundantly evident the past couple of weeks, as conservative bloggers have been showered with ever more attention from the Republican powers that be — yet have nothing substantive to show for it.

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What Should Democrats Do Regarding Harriet Miers?

miers1a.jpgPaul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:

Therein lies the Democrats’ dilemma — actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.

Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won’t be a great superstar on the Supreme Court, and hence, she won’t be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.

Should this argument incline Democrats toward supporting Miers?

The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.

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Miers, Frum, Congress, and Respect

miers.jpegAt National Review, David Frum’s criticms of the Miers nomination continue apace. Frum is now discussing John Fund’s op-ed from yesterday, which focused on a conference call where religious leaders were told about Miers’ alleged beliefs about Roe v. Wade. If true, this creates a number of potential problems. Frum notes one particularly salient problem:

If Fund is right, the White House was acting in such a way as to persuade a group of religious leaders that they were being given more information on a nomination than would be given to the US Senate.

Such behavior, if true, would be inexcusable. Either the White House is giving religious leaders greater access to nominee information than Congress — which would be outrageous. Or the White House is simply letting religious leaders think (wrongly) that they’re getting more information than Congress — which would be evidence of blatant hypocrisy, dishonesty, and deep contempt for its own supporters. Neither option looks good for the White House.

Probably the best way out is to hang the two call participants (who allegedly knew Miers’ preferences) out to dry, painting them as rogue agents or loose cannon loudmouths. But can that be done — to two close Miers associates — without negative consequences for Miers herself?


Fund on Miers

A number of prominent conservative pundits – among them George Will, Bill Kristol, Ann Coulter, Rush Limbaugh, Michele Malkin, and Charles Krauthammer – have publicly opposed the Harriet Miers nomination. However, the nomination has been supported by some social conservatives including Hugh Hewitt and James Dobson. In today’s WSJ, John Fund suggests one reason why some social conservatives might be supporting Miers:

On Oct. 3, the day the Miers nomination was announced, Mr. Dobson and other religious conservatives held a conference call to discuss the nomination. One of the people on the call took extensive notes, which I have obtained. According to the notes, two of Ms. Miers’s close friends–both sitting judges–said during the call that she would vote to overturn Roe.

If this is accurate, how does it change the calculus? (And how can we gauge its accuracy?)

Perhaps this information brings conservatives on board. If Roe is a trump card, perhaps a guaranteed no-on-Roe overrides concerns about her views in other areas, or about her lack of a paper trail, or even about her SMU sheepskin. On the other hand, perhaps this information only serves to drive away moderate supporters. Does Harry Reid still support her candidacy now?

And is it possible that Dobson has managed to torpedo Miers’ candidacy by his earlier declaration that “I know something secret,” which (perhaps) brought Fund in to investigate in the first place?


Will the Blogosphere Affect the Miers Appointment?


VCstats3.jpgThe blogosphere is erupting with reactions to Harriet Miers nomination. Will the blogosphere affect the confirmation? What kind of effect will it have?

My guess is that the blogosphere will play an important role. Many blogs have experienced an influx of traffic this week after the nomination was announced, such as The Volokh Conspiracy, which jumped from about 25,000 visits per day to over 40,000. [The image on the right is of The Volokh Conspiracy’s visitor traffic over the past month.] These blogs are being read by those in all corners of government. They are thus influential in shaping the debate, especially among those in powerful positions. Blogs are also helpful in getting a read on what people very engaged in politics are thinking.

The confirmation hearings have largely become a meaningless ritual, where little about a nominee is revealed, where nominees merely dodge the tough questions and provide assurances that they won’t “legislate from the bench.” The more meaningful discussions are occuring in the blogosphere. Perhaps this is where Miers will be most thoroughly vetted and discussed.


Reactions to Miers

A non-comprehensive collection of links, gleaned from all over over the past few days (with Bainbridge and Volokh providing much of the information):

Support from the right:

Hugh Hewitt.

James Dobson.

Grover Norquist.

Mike DeWine.

John Cornyn.

Support from the left:

Daily Kos.

Harry Ried.

Ben Nelson.

Opposition from the right:

Charles Krauthammer.

George Will.

Randy Barnett.

Michelle Malkin.

William Kristol.

Stephen Bainbridge.

David Frum.

Ann Coulter.

Opposition from the left:


Marjorie Cohn.

The Nation.


People for the American Way.

Alliance for Justice.

Charles Schumer.

Okay, who am I leaving out that I should be including on the list?