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Saturday, October 08, 2005

Most unlikely promise I've read on The Corner

JPod's title for this post: "A Final Word on Miers." Heck, it's only 10:35pm Eastern right now, I doubt it will be the final word tonight.

(Well, maybe JPod's final word tonight, if he's going to bed now. In which case I ask: Society guys like JPod go to bed in NYC at 10:35pm on a Saturday?!? Or maybe he's going "out." Yeah, that's the ticket.)

(But for the record, again, I don't endorse the Lindsey Graham "you oughta shut up" theory.)

Posted by Beldar at 09:35 PM in Humor, Law (2006 & earlier) | Permalink


Other weblog posts, if any, whose authors have linked to Most unlikely promise I've read on The Corner and sent a trackback ping are listed here:


(1) Paul Deignan made the following comment | Oct 8, 2005 10:06:14 PM | Permalink

By anyone's definition, Miers is politically vulnerable to a Dem filibuster or outright no vote. It may be that this was the plan all along.

Even if Miers is the effective pro-choice candidate that I think she is, the Dems may well attack since a victory is a victory and increases their power in the Senate.

Never go to a gun fight with only pocket knife, nomatter how nice and shiny the pocket knife.

(2) George Turner made the following comment | Oct 8, 2005 11:15:34 PM | Permalink

Hmm... That is really the final word? I suppose that from here on out National Review's will ape MSNBC and discuss the continuing search for Natalie Holloway in Aruba.

(3) Rob made the following comment | Oct 8, 2005 11:39:32 PM | Permalink

Ms Miers as the "effective pro-choice candidate"?

The evidence suggests she is not pro-choice. Personally I don't expect Roe to be overturned, however there are other issues where if she turns left, I believe it could present serious problems for the United States in the war on terror. The very survival of the country could be at stake should we get a few more Judge Ginsbergs. However, Roberts personal views are still unkown and were not stated during the hearings, nor did his writings suggest his leanings on many issues

Why would Ms Miers as head of the Texas Bar Assn urge the AMERICAN BAR ASSN at one point to put their hard line pro-choice stance up to a members referendum? Like many other former members of the ABA, I too dropped out of the ABA unable to stand their ultra-left leanings and advocacy. As you probably know its only the local bar assn that licensed attys need to be concerned with, as the ABA is simply an option-to-join professional organization.

From Sun Tzu's Art of war it states the following:

"the skillful leader subdues the enemy's
troops without any fighting; he captures their cities
without laying siege to them; he overthrows their kingdom without lengthy operations in the field"

This of course was not an option in Iraq as the United States (being the target) could not afford to simply guess whether WMD's existed or not, and Saddam as a terrorist supporter (and Hamas financier) and general enabler and middle east troublemaker had to be taken down regardless of whether he had or did not have WMDs. Iraq was not and is not simply about Iraq

However I believe this principal from the Art of War was the very principal Bush was using in his "battle" versus the hard line Senate leftists and RINOs on the Judiciary Committee who were bent on shutting down for example either Janice Rogers Brown or Priscilla Owen, both having extensive written records perfect for Schummer and Biden and Kennedy to rip them to schreds and make it a long drawn out and probable losing battle

Now I know Coulter & Company were spoiling for a huge fight, however they sometimes remind me of soccer hooligans in the United Kingdom, who seem to be more interested in bashing heads than following their team

Bush if he made a misstake was not in picking someone unqualified, it was in judging the prospective reaction of selecting a nominee not on Coulter & Company's favorite list. Bush in effect was attacked on his flank by a unit of his own army, an apparent academic-centered/real world experience light (with some exceptions) disgruntled bunch of elitists quite willing not only to immediately trash Ms Miers but to put into the blogopshere false information on Ms Miers (corrected by Beldar) which made a bad first impression on many parties unable or unwilling to dig out the true facts of this nominee

There are still some parties that still believe that Ms Miers was doing the typing in the White House and getting W's coffee, and then worked her way into a lawyer job

Some oppose Ms Miers, fine no problem, present the facts and reasons why, instead of demanding she withdraw, cutting short the Consitutional process

Nothing in the Constitution says Ms Coulter has to approve the nominee

(4) made the following comment | Oct 9, 2005 1:21:12 AM | Permalink

"Why would Ms Miers as head of the Texas Bar Assn urge the AMERICAN BAR ASSN at one point to put their hard line pro-choice stance up to a members referendum?"

I already answered this questi9on in another thread. The quote indicts her as well as the fact that she remained in place after losing the appeal.

A pro-lifer would have resigned.

(5) Rob made the following comment | Oct 9, 2005 3:05:53 AM | Permalink

"a pro-lifer would have resigned". Apparently that is your rule

Here are my rules

RULE 1: odds are higher a person is pro-life or at least NOT standard pro-choice if this person goes out of their way to urge the ABA to take their pro-life stance to a member vote

RULE 2: a nominee now being described (by a few) as an "effective pro-choice candidate" would not have even bothered to present the abortion stance issue to the ABA to begin with

Roberts and Miers are both probably both "pro-life" however that may become irrelevant to whether they would actually vote down Roe

THAT is the essence of the problem presented by Bush putting up Priscilla Owen or Janice Rogers Brown, the sole issue would then become Roe and in the end the candidate would lose with the libs and the RINOS combining to stop the nomination

(6) Senator Palpatine made the following comment | Oct 9, 2005 5:55:46 AM | Permalink

"Roberts and Miers are both probably both "pro-life" however that may become irrelevant to whether they would actually vote down Roe."

Then pro-life means nothing. Nobody really likes abortion, and would prefer there be fewer of them. Remember Bill Clinton's, "safe, rare, and legal" motto? I guess he's pro-life, too.

(7) saveliberty made the following comment | Oct 9, 2005 8:43:46 AM | Permalink

JPod himself indicated that perhaps the litmus test wasn't Roe, but whether to keep Padilla behind bars.

(8) Rob made the following comment | Oct 9, 2005 11:30:29 AM | Permalink

Roe really isn't the issue because in practical terms it is highly unlikely it will ever be overturned. I realize Laura Ingraham via her national radio program alludes daily about Roe being overturned, however I believe sometimes Ms Ingraham is in a disconnect from the real world

Partial birth, parental consent, basically issues collateral to Roe are really where the focus will be

As Genifer Flowers openly states Bill Clinton paid for her abortion, he is hardly "pro-life"

My impression is that Roberts for example, while personally opposed to abortion, and apparently would hope (as his wife does and the groups she supports do)that pregnant women can be persuaded to avoid abortion given prospective help with their pregnancies and possibly opt for adoption etc - however in the end Roberts would not overturn Roe

(9) Paul Deignan made the following comment | Oct 9, 2005 11:50:32 AM | Permalink


At the time, Miers was moving into politics in a state that was voting more and more heavily pro-life GOP. The ABA was known as a pro-choice organization so this move of Miers can be interpreted as political cover. However, it was unprincipled. Miers did not resign.

That year she ran and got a seat on the Dallas City Council. Remember, she is savvy.

(10) Ironman made the following comment | Oct 9, 2005 12:01:18 PM | Permalink

Well, I'm glad JPod has ceased bringing his own gasoline to the fire.

Beldar, should we be concerned Miers quit the Dallas City Council after one term? I'd hate to go through all this ordeal only to find she up and quits the Court a few years down the line.

(11) Rob made the following comment | Oct 9, 2005 12:16:39 PM | Permalink

Per wire stories Judge Hecht is quoted today as saying:

1. there "is no chance she would step aside"

2, Miers is "an abortion opponent, but that does not mean she would vote to overturn Roe."

In other words, basically the same as Roberts

I realize Ms Coulter & Company very much wanted to see a WAR OF THE WORLDS clash between THEIR nominee and the Judiciary Committee, however its simply not going to happen

(12) made the following comment | Oct 9, 2005 12:16:42 PM | Permalink


There is more to it. She didn't quit. Her "at large" seat was eliminated and she didn't want to run in her district.

Whether the rest of her credentials are good, bad, or indifferent, that is a perfectly reasonable reason to leave the council after one term.


(13) Mike on Hilton Head Island made the following comment | Oct 9, 2005 12:22:35 PM | Permalink

I think Beldar gets it right about JPOD... 10:35 is JUST the time to go out on the town in NYC...

But as for a "final" post, I used to do some of my best work after a night on the town, shortly before bed at the normal hour of 4 AM.

(14) Ironman made the following comment | Oct 9, 2005 12:36:39 PM | Permalink

Thanks Polaris

Once again, it would be nice if that had been properly explained by the appointing authority...FYI the press has reported she didn;t seem to get along well in the back and forth of council politics though...which leads me to wonder how she would work in court politics?

Given the liklihood the Dems will hold the White House at some point in the next decade or so, we need some comfort level she'll be as eager to leave as Renny

(15) Paul Deignan made the following comment | Oct 9, 2005 12:39:38 PM | Permalink

No Rob,

Not the same as Roberts. Roberts has a very well defined conception of the constitution that if you follow him shows that he would vote to overturn Roe as lacking in a basis and also an affront to the natural rights foundation of the constitution. Miers hasn't any such framework.

She might be pro-life for herself personally (like O'Connor) or as an ideal, but not at all pro-life as it referrs to Roe. She likely buys into the idea that a woman should have the right to choose especially as she has a strong feminist streak.

The fact that Hecht admits that she is not likely to overturn Roe should be a clincher. He warned you.

(16) made the following comment | Oct 9, 2005 12:52:24 PM | Permalink

Paul Deignan,

You were opposed to the Roberts nomination as well, as I recall. In addition Roberts is not a sure thing to overturn Roe and thinking that is wishful thinking on your part.

He IS likely to restrict it, however. [That doesn't mean he won't overturn Roe mind; it just means that he would look at the caselaw carefully and tends to be reluctant to violate Stare Decisis.]


(17) Paul Deignan made the following comment | Oct 9, 2005 1:03:43 PM | Permalink


Listen to Roberts testimony on stare decisis and think of meta-rules.

Rehnquist always voted against Roe/Casey/Carhart. So would Roberts and for the same reasons--the right reasons.

(18) Paul Deignan made the following comment | Oct 9, 2005 1:05:25 PM | Permalink

Here is that link.

Deignan on Roberts right after nomination.

Oh, and it's not "French Benefits".

(19) Rob made the following comment | Oct 9, 2005 1:16:26 PM | Permalink

The other side would merely say the (e.g 1st trimester) pregnant woman also has "natural rights" thus you end up at square one

More buzz words to confuse matters further

Some may not appreciate this unless they have sat for a year in a Constutional Law class and passed the bar, however THE SUPREME COURT often in effect makes decisions (sometimes just using common sense and innate left or right biases) first and figures it out the rationale later, often with new buzz words or litmus tests or labels

Its often a circular kind of reasoning however its certainly not rocket science

"Natural Law" is another buzzword, meaning 9 different things to 9 different people

Saying Roberts supports natural law and concluding that means he will overturn Roe is absurd

(20) made the following comment | Oct 9, 2005 1:18:09 PM | Permalink


No. You are *assuming* this. You don't know this.

I am not saying you are wrong, but I am saying that you haven't proven your point.


(21) Polaris made the following comment | Oct 9, 2005 1:21:31 PM | Permalink


That's an excellent point and I have come around to Beldar's PoV. The constitution was never meant to be an esoteric document that required years of "Constitutional Law" to understand.

The Constitution was quite deliberately written in plain language so everyone could understand it. It's time we returned to that basic principle. It's the "Philosopher King" mentality that got us into this Judicial Activist mess in the first place IMHO (now that I look at it again).


(22) J.J. made the following comment | Oct 9, 2005 1:35:34 PM | Permalink

Does anyone else think it ironic that the Judiciary committee will be quizing H. Miers on constitutional law? Remember I am a non-lawyer, but the lawyers on the committee seem not to be constitutional scholars themselves. And, they urged GWB to consider nominating some of the lawyer Senators ..... another group of constitutional law experts .....

I'm sure their staffs will come up with trick questions that only are designed to make the Senators look important rather than have an honest discussion of the Constitution itself, something everyone should be able to do and which I believe would inform us much better than any "trick questions".

(23) Cardassian made the following comment | Oct 9, 2005 3:38:25 PM | Permalink

"THAT is the essence of the problem presented by Bush putting up Priscilla Owen or Janice Rogers Brown, the sole issue would then become Roe and in the end the candidate would lose with the libs and the RINOS combining to stop the nomination"

Rob, *all* the RINOs (and quite a few Democrats) voted for Judge Roberts, and they all did so for Clarence Thomas in 1992, who was much more controversial and a reliable conservative. Arlen Specter was Thomas's biggest defender! I don't like the RINOs but they haven't betrayed us when it comes to conservative SCOTUS nominees.

In any case, worrying about the RINOs is certainly no excuse to go chicken-sh*t on the most important and lasting choice that Bush can make-- a SCOTUS appointee will be there for decades. It's now become obvious, moreover, that Harriet Miers is basically a Souter-style liberal: She is already on record as being a strong supporter of affirmative action and racial and gender preferences when she was handling the Grutter case (translation-- blatant state-sponsored discrimination against whites, Asians, and blacks and Latinos who actually have merit). This basically represents a direct attack on the most basic principles of the Constitution and is not acceptable for a Supreme Court justice.

A fight to confirm a true and tough conservative who's been fighting for the conservative cause-- esp. w/ a Dem filibuster-- would fire up the GOP base and get us more seats in 2006. With 55 GOP Senators, this is not the time to go impotent-- it's the time to pick somebody like Michael Luttig or McConnell, or Janice Rogers Brown or Owen. As Bush said in another context, if the Dems try to filibuster, "bring 'em on!" Why is Bush going flaccid and wimpy on a far more important fight? If he does not withdraw the Harriet Miers nomination, he will be seen by all sides as one of the worst Presidents in US history. It's so easy for him to correct this and win back the base again.

(24) Beldar made the following comment | Oct 9, 2005 4:10:24 PM | Permalink

Cardassian wrote,

She is already on record as being a strong supporter of affirmative action and racial and gender preferences when she was handling the Grutter case (translation-- blatant state-sponsored discrimination against whites, Asians, and blacks and Latinos who actually have merit).

That's factually inaccurate, and I can't let it pass unchallenged. I defy you to produce any document or source in which Ms. Miers has said in public and for attribution — and that's what it means to "go on record" — the words you impute to her.

Various folks, including David Frum, have ascribed certain positions to her, but without the full context, and quite possibly without the benefit of the full advice that she gave to the President in their private discussions — which it would very much surprise me if David Frum (a WH speechwriter, and I'm unconvinced that he's a reliable reporter on this particular issue anyway) was permitted to hear.

Moreover, as I've pointed out elsewhere, this came up not in a pure legal context, but a mixed political and legal one — the Administration's decision on what position it ought to take on an issue as controversial as this one quite possibly included political compromises of legal principle. Certainly the Administration's ultimate position, as expressed through amicus briefing, was to condemn the University of Michigan's undergraduate quota system, but support the "plus factor" system used at its law school, and that compromise position indeed corresponded to the Court's eventual ruling on the two cases. I am no fan of Justice O'Connor's opinion in the law school case, as I've written many times elsewhere on this blog. But if indeed Ms. Miers made recommendations based in whole or part on how particular positions might affect the political situation (including the results of the then-upcoming 2004 election), there is no logical reason to presume — much less draw an irrebutable and absolute conclusion — that she would have the same legal opinion were she in the very diferent shoes of a Justice considering that same case and making decisions solely on the basis of the law and the Constitution.

If you don't know what you're talking about, don't pretend that you do. If you're selling half-truths, please go elsewhere to do that. An opinion like your "worst president" line, I'll generally let pass unremarked. A failure of logic like yours, I won't always bother to challenge. But I try to point out when someone peddling a point of view on my blog has their objective, verifiable facts wrong — and your speculation ought not be presented as Harriet Miers' statements "on the record."

(25) Paul Deignan made the following comment | Oct 9, 2005 4:35:21 PM | Permalink

Our discussion has motivated me to do more research to investigate my speculation.

I have found that it is indeed very likely that Miers is pro-choice as revealed by the associations and judgements of those in power at the Bush whitehouse: Birds of a Feather.

Thanks for the thought provoking questions. I think they have done us a great benefit.

(26) Rob made the following comment | Oct 9, 2005 5:05:51 PM | Permalink

In simplest terms GRUTTER in essence made university level color-coding perfectly lawful.

The decision of course is a disgrace, another convoluted mess produced by the alleged great minds of jurisprudence

The Bush admin of course did play both sides here, clearly for political reasons, with the upcoming election in mind. Bush is hardly a conservative on many issues (e.g prescription drugs). This however does not mean Miers would have gone along with O'Connor had she been on the Court.

As others have pointed out we are really getting Frumm's interpretation of events.

The Michigan cases are interesting, because they could become the foundation for the day when bar exams are color-coded. I remember hearing about an effort in California years back (possibly pushed by white law professors) whereby certain designated minority candidates were to be awarded hardship points or something similar on the bar exam, i.e in essence 2 bar exams. The idea was that the exam itself was claimed to be inherently racist, as certain groups consistently had extremely low pass rates. Of course to liberals, this means it MUST BE RACISM

Ironically (but quite logically) it was BLACK LAWYER assns of various kinds that shut down this absurd idea. They didn't want the affirmative action stigma retroactively applied to them, when they had all done it the real way - passed the test on the merits

(27) Rob made the following comment | Oct 9, 2005 5:37:34 PM | Permalink


In reference to the issue of Senators and their level of expertise on Constitutional matters and so forth, Sen Arlen Specter (politics aside) actually is a Roberts-level expert of some note

Specter was in fact the editor of the Yale Law review back in the mid- 1950's, and during the confirmation hearings (unlike Biden) Specter had no problems keeping up with Roberts

Specter has been routinely and quite unfairly at times blasted for his role on the Warren Commission and the so-called "magic bullet" theory of the JFK assasination. The reality is Specter was eventually proven right, when new information from the digital versions of the Zapruder films were analyzed further in the 1990's, basically a lapel flare on Governor Connelly's clothes (previously unseen by anyone) was clearly shown on the film, thus precisely tying in the path and timing of the bullet.

Beyond that I won't comment on the JFK case, because I find nearly ANY exchange with the conspiracy crowd a total waste of words

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