Indictment Shift?

As I've argued, neither the Intelligence Identities Protection Act of 1982 (50 U.S.C. § 421 in particular) nor the Espionage Act (18 U.S.C. § 793) appear to criminalize disclosure of Valerie Plame's identity. On Friday, Murray Waas, writing in the National Journal, speculates the Special Prosecutor agrees, and now is focusing on "making false statements to investigators or with obstruction of justice."

Piling On Polygamy

After last month's apparent legalization of polygamy in the Netherlands, Tim Cavanaugh minimizes the threat in (libertarian) Reason magazine:

Victor, Bianca, and Mirjam are specifically not entering into a marriage but into a civil union, to which gay couples already have broad access. Gay marriage proponents want access to traditional marriage, and once they get it will no doubt be just as defensive and niggardly with the privilege as their opponents are now.

On her own blog, libertarian-leaning columnist Cathy Young agrees the threesome isn't married:

it turns out that it's not even a civil union. Victor and his two wives have entered something called a samenlevingscontract, or "cohabitation contract" -- which is not the same thing.

(Apparently, one principal difference between the samenlevingscontract on the one hand, and marriage/civil union on the other, is that the terms of the contract -- i.e., whether there will be alimony in case of a breakup -- are pretty much set by the parties themselves, except for legal provisions to protect children.) . . .

So basically, the kind of contract the trio has entered into predates not only same-sex marriage but gay civil unions in Holland. Apparently there is some confusion over whether a cohabitation contract can include more than two people, or whether someone who is married can also enter into a cohabitation contract with a third person. This is the loophole the de Bruijns and Geven used to legalize their menage á trois. . . They could not have availed themselves not only of same-sex marriage but even of a civil union, which is essentially marriage in all but name.

Both Cavanaugh and Young downplay the Dutch legal definitions to lessen the likelihood of a slippery slope toward undermining the institution of marriage. Such quibbling misses the point, says Tacitus. Whereas the 1960s left-libertarian alliance sought to reform and perfect American culture and governance, their successors seek freedom from civilization and structure:

The irony of the social left retreating into the argument that society does not matter -- and that individual choice is the key determinant in the validity of institutions -- is thick. It also, given some reflection, completely negates the argument for diluting and expanding marriage in the first place.

It is the fetishization of individual choice as the prime value in itself that leads to absurdities and slippery slopes like these. Social structures are social structures, and inherently the business of society and its agents -- including government. The ability to choose and create them ex nihilo without reference to first principles -- or with the act of choice as the first principle -- is a recipe for monstrosities far beyond our Dutch farce. We already see it in the pathetic existence of political leaders who claim to believe that a certain act constitutes murder, and then disclaim any ability to do something about it. One such wretch ran for President last year. Choice, not human life, is the prime value here. Contrary to the wisdom-of-crowds fantasies of libertarians and communists, choice is as readily exercised for evil as good: and so it is inherently neither.

Instead of the triumph of the will, we presumably have law, culture, tradition, mores, and society. These things once mattered, and mattered more than the dissolute fantasies of a Dutchman, or the political agenda of a behavioral fringe. They do not now.

Agreed. The attack on traditional marriage is a symptom of a half-century of leftist reversal and retreat. Seventy years ago, they glorified Stalin's forced collectivization, which tried to fashion the "new Soviet man," but instead killed at least 5 million by starvation and another 6 million by more conventional means. Forty years ago, the left vowed to "pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty," but flushed idealism down the memory hole and sat on their hands ever since. They attack tradition because it's traditional--indifferent to the unintended consequences of repeal.

Yet suddenly "progressives" trumpet excessive individuality. And they exalt one liberty über alles: promiscuity. They would fight to preserve the kulaks' right to unrestricted abortion on demand--except, oops!, few kulaks survived. They hate corporations and Congress, commerce and churches--and children in Boy Scouts. Leftists decry government interference with their lifestyle--but champion taxing success, with the revenues earmarked for failure.

So it's no surprise 21st Century liberals ran out of ideas and resist change. A 70 year winning streak is quite a thrill--better still with a note from their guru excusing them from repairing the proven traditions and civil society they distain.

Pin the Paint on the Donkey

Progress has come to Namibia, with a unique downside. Located just above South Africa on the Atlantic coast, Namibia is -- comparatively speaking -- an African success story, with a GDP per capita of $7,300 (at purchasing power parity)--102nd best overall, trailing only South Africa in the region.

Transitioning from poverty and privation to a modern society, Namibia's concentrating on infrastructure, including building and improving roads and highways. For now, however, much internal transport and trade moves on the backs of Namibia's "over two hundred thousand donkeys":

Donkeys pull carts that carry children to school. They plough, carry water and firewood and take produce to market. They are vital to the livelihoods of many families in Namibia.

Unfortunately, according to the October 8th Economist (subscription only for now), the donkeys discovered the newly paved roads--and got the wrong idea:

When cruising along Namibia's long and empty roads, unsuspecting drivers face a no less dangerous hazard: sleeping donkeys. At night, the warm tarmac provides a much more comfortable bed than the vast expanses of land only a few yards away. Invisible in the dark, the dormant asses, which help plough Namibia's land and pull its carts, have become a cause of many a car crash, to the dismay of drivers and the police alike.

Supposedly, about 25 percent of vehicle accidents involving animals end with a dead ass.

Enter Russell Hay, a British businessman with extensive mining concessions in Namibia. Vowing "donkeys should be seen and not hurt," Hay and a friend:

set up Donkey Welfare of Namibia. With the Namibian government's blessing, the British outfit is planning to make donkeys glow in the dark by attaching reflective tags to their ears.

A pilot scheme is about to be started in two or three of Namibia's donkey hot spots. If it works, Donkey Welfare is thinking of enrolling local schools to tag the animals for a small fee.

Donkey Welfare, a U.K. non-profit, is accepting donations--they calculate costs at £3 per donkey. No PayPal -- at least yet -- but their website includes a London PO Box address.

Friday Miers Reactions

Following earlier posts, I'll begin with a comment I posted on SC&A:

Let me try this two-part proof:

1) Miers is not the most qualified potential nominee.

2) See # 1.

It's that simple. Don't over-complicate or -nuance the issue.

Big-time Federal and Constitutional law are as close to a meritocracy as anything in America. One First Street, NE, is no place for second-best. How can those who concede # 1 support Miers for the country's number one Court?

Next, the Wall Street Journal's Daniel Henninger:

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.

David Limbaugh agrees in (the re-designed) TownHall:

Conservatives, by advocating the appointment of the best of the best, are not bowing to elitism or snobbery but recognizing the critical importance of justices. Constitutional jurisprudence, while not rocket science, is indeed a scholarly enterprise.

Some have said that as long as a justice votes "correctly," it doesn't make any difference how brilliant he or she is. But Supreme Court justices don't just vote. They analyze, discuss, debate and engage in the art of persuasion.

Most, if not all, of the liberal justices on the Court are intellectual heavyweights. When a vacancy on the Court occurs, the president has a solemn duty to nominate the best and the brightest. He should choose not only strict constructionists, but those who can hold their own against the liberal activist justices who are steadily rewriting the Constitution and removing, brick by brick, its foundation.

What conservative skeptics of the Miers appointment have been saying is that a pool of extraordinary conservative constitutional scholars exists, whose members have proven, through their legal careers, their unique qualifications and fitness for the position. While they don't doubt Miers has excellent character and, perhaps, even superior abilities, they don't see her -- at least at this early stage -- as possessing the optimum background to sit on the Court, compared to so many others.

After observing that "this Miers thing sure is putting me on the opposite side of the fence from a lot of bloggers I like," Patterico rejects Polipundit's notion that ideology matters, not brains or legal reasoning:

Wow. I couldn’t disagree more. To me, ideology does not trump all. I am an idealistic adherent to the rule of law, as John Roberts portrayed himself in his confirmation hearings. I believe that the Constitution means what it says, and should not be treated as a warrant for creating whatever rights are deemed necessary by philosopher-kings in black robes.

To the extent that Polipundit means “ideology” in the “rule of law” sense I have just described, I could at least understand that sentiment — though I still disagree with his suggestion that merit is irrelevant. I am a great admirer of Justices Scalia and Thomas. I certainly want to see their positions get more votes. . .

But the reason that we want to see more votes for the positions of Scalia and Thomas is because these Justices and their positions have such great persuasive force — because they have merit, and because their points of view are well thought-out. . .

And — even assuming Miers votes with Scalia and Thomas a lot — it’s an open question how she will vote when she isn’t voting with them. Will she take a boneheaded conservative position that is at odds with the Constitution — like Rehnquist did in Texas v. Johnson when he voted to uphold laws against flag-burning with a completely unpersuasive “just because” line of reasoning? Will she take weaselly middle-of-the-road positions like the Justices she is being compared to, like O’Connor and Powell?

Charles Krauthammer in Friday's WaPo:

It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

Moreover, the Supreme Court is an elite institution. It is not one of the "popular" branches of government. That is the reason Sen. Roman Hruska achieved such unsought immortality when he declared, in support of an undistinguished Nixon nominee to the court, that, yes, G. Harrold Carswell is a mediocrity but mediocre Americans deserve representation on the court as well.

To serve in Congress, or even as president, there is no requirement for scholarship and brilliance. For good reason. It is not needed. It can even be a hindrance, as we learned from our experience with Woodrow Wilson, the most intellectually accomplished president of the 20th century and also the worst.

But constitutional jurisprudence is different. It is, by definition, an exercise of intellect steeped in scholarship. Otherwise it is nothing but raw politics. And is it not the conservative complaint that liberals have abused the courts by having them exercise raw super-legislative power, the most egregious example of which is the court's most intellectually bankrupt ruling, Roe v. Wade? . . .

By choosing a nominee suggested by Senate Democratic leader Harry Reid and well known only to himself, the president has ducked a fight on the most important domestic question dividing liberals from conservatives: the principles by which one should read and interpret the Constitution. For a presidency marked by a courageous willingness to think and do big things, this nomination is a sorry retreat into smallness.

And lets move past the straw-man claim that conservatives favor government lawyers over private practitioners (to read it is to refute it), says Pejman Yousefzadeh at RedState:

I am not saying for one moment that private practitioners do not deserve elevation to the Supreme Court. But the issue isn't whether someone is a private practitioner or a sitting judge or an academic. The issue is what kind of skill sets does a nominee bring to the Court. In that respect, the consideration we are undertaking regarding Ms. Miers's nomination is similar to the consideration of any job applicant for a particular position.

Specifically, if a private practitioner has the requisite skill set for the Supreme Court, then the fact that he/she is a private practitioner should be no bar whatsoever. . . The bias is against private practitioners who do not bring the requisite skill sets to the Supreme Court. To illustrate the point, would you ask a specialist in toxic torts to structure a merger? Would you ask a corporate and securities specialist to defend a medical malpractice case? Would you ask a labor and employment lawyer to draft a complex will or set up a trust?

Surely not. You would go to specialists within the law for such things. So it is with the solicitation of private counsel. So it should be with the selection of Justices for the United States Supreme Court. Private practitioners need apply for seats on the Court. And so long as they have the needed skill sets, they should be considered.

Last, but not least, Miers was profiled by Legal Times in December 2004, as she replaced Attorney General-designate Alberto Gonzales:

Her critics say the problem goes beyond what Miers does or doesn't know about policy -- and right back to a near-obsession with detail and process.

"There's a stalemate there," says one person familiar with the chief of staff's office. "The process can't move forward because you have to get every conceivable piece of background before you can move onto the next level. People are talking about a focus on process that is so intense it gets in the way of substance."

One former White House official familiar with both the counsel's office and Miers is more blunt.

"She failed in Card's office for two reasons," the official says. "First, because she can't make a decision, and second, because she can't delegate, she can't let anything go. And having failed for those two reasons, they move her to be the counsel for the president, which requires exactly those two talents."

Does Miers's skill set stand up to any of the formulations above?

More:

It occurs to me that the foregoing (plus this) rebuts Beth at My Vast Right Wing Conspiracy who, for tactical reasons, asserts "Harriet Miers might be 'the most qualified' right now, for long-term strategy." Like Betsy, I wonder, 'where's the beef?'

Miers Elsewhere

UPDATES: below, Footnote added 11pm

MaxedOutMama and SCA posted their take on the nomination (with back-and-forth in comments), both of which are substantially more upbeat than mine.¹ And Beldar's still blogging up a pro-Miers storm, including a pointer to quotes from a favorable profile of Miers in the December 1996 Texas Lawyer.

More:

Beth, at My Vast Right Wing Conspiracy, says all your base are belong to us:

I find it also amusing how the Miers-bashers claim the title of “the base.” WRONG. I’m “the base,” that is, not one to pick up my marbles and leave because of whatever. It’s also ironic that many (but certainly not all) of those who are complaining about Miers were (again) the rabble-rousers attacking others within the party during the Terri Schiavo “debate” (or rather, brawl). Remember THAT one? I certainly do. What about the “Not One Dime” bullshit, where they/you said “not one dime” to the GOP because of the filibuster deal? THAT is the base? Sorry, but those who threaten to leave the party are absolutely NOT “the base.” They are, to be blunt, selfish. There are a lot more people in the GOP who fully recognize that there are religious conservatives, moderate conservatives, libertarians, etc. in the party and can handle the differences without abandoning the party due to them. Anyone who expects to get their way about everything all the time is, again, to be blunt, a selfish, spoiled child.

Thomas at RedState.Org pens a powerful post to the contrary:

The President has nominated Harriet Miers to the United States Supreme Court. We have no indication that she will overturn Roe, no indication that she has a single jurisprudential principle at all. Let us not put too fine a point on it: We have been betrayed. We must now hope and pray -- on scant evidence -- that Miers is a truly stealth Scalia, a woman who will overturn the edifice of Roe, a woman who will rise up with righteous fury at the mere mention of the words "an historic voyage of interpretation," when used in the same sentence with the word "Constitution."

A betrayal this surely is, for you have taken the single thing from us that we have worked all these years to achieve, and used it as a mere bauble to gather our votes, knowing that when the time came to meet your part of our pact, you would decline, promising us that it would be just a little longer. You have made us guess, and hope, and pray, that Miers is at least a shadow of the "judges in the mold of Scalia and Thomas" that we were promised. And Miers's nomination is merely the topper on a long line of smaller betrayals.

People of good faith can believe that this is a good nomination, or that the Party has earned enough credibility to take a leap of faith here. I do not. Let me be clear about something: I care precisely nothing about Miers's "qualifications." . . I care, however, that we know nothing about her – or at least, nothing that matters. The single most fundamental question is this: Does she have a coherent, concrete philosophy? If not, she will surely be a return to the bad old days of Sandy O’Connor, and we have no guarantee that she will not be buffeted by the egos around her, some of whom actually have theories of jurisprudence. (Justices Souter, Kennedy, and Stevens are therefore no danger to her, except insofar as they hang out at the nerd table in the cafeteria together.)

And don't miss former Bush speechwriter David Frum at NRO:

I have been and remain a supporter of this administration and this president. For the past three years, I have been speaking and writing in defense of this administration's goals and this president's character. . .

I have spent hours over the past three days listening to conservative jurists on this topic - people who have devoted their lives to fighting battles for constitutionalism, for tort reform, for color-blind justice, people who fought the good fight to get Bork, Scalia, Thomas, and now Roberts onto the high Court.

Their reaction to the nomination has been almost perfectly unanimous: Disappointment at best, dismay and anger at worst. Here's the tough truth, and it will become more and more important as the debate continues: There is scarcely a single knowledgeable legal conservative in Washington who supports this nomination. There are many who are prepared to accept her, reluctantly, as the president's choice. Some still hope that maybe it won't turn out as bad as it looks. But ask them: "Well what if the president had consulted you on this choice," and the answer is almost always some version of: "I would have thought he was joking."

Why do so many fine conservative lawyers object to Miers? This oped by John Yoo gives a hint. John was one of the most brilliant lawyers in the Office of Legal Counsel in the Department of Justice in the first Bush term. He was a stalwart defender of the president's war powers - and he has taken his share of abuse in the press for fighting for his conservative principles.

Yoo's piece is very carefully phrased. Indeed, given the heavy hints that the administration has been throwing out recently, it must have taken strong courage for this man who is himself eminently qualified for an appellate judgeship, to have gone even as far as he did. But listen:

[A]ccording to press reports, she did not win a reputation as a forceful conservative on issues such as the administration's position on stem cell research or affirmative action.

Yoo is referring here to the case of Grutter v. Bollinger, a challenge to the constitutionality of preferential treatment for minorities in education. Many in the administration wanted to take a strong stand in favor of color-blindness. In the end, the administration faltered and argued that racial preferences are okay, up to a point. It is hard to imagine a more central issue to modern legal conservatives. Where was Miers? On the wrong side.

Inside the White House, Miers was best known, not as a conservative, not as a legal thinker, but as a petty bureaucrat.

Still More:

From today's Washington Times:

[C]onservatives said they had mobilized grass-roots support and raised money to wage advertising campaigns on behalf of a prominent nominee with a documented strict-constructionist record. Instead, they complained, they got Miss Miers, with no such record and a "trust me" from Mr. Bush.

Participants at both the Norquist and Weyrich meetings complained that, in naming Miss Miers, an ex-Democrat who once headed the Texas Bar Association, Mr. Bush bypassed a score of highly qualified and respected jurists with clearly established conservative records. Activists accused the president of running from a fight that conservatives have waited decades to wage -- and in the process, show Americans the importance of judicial restraint and courts that respect the rule of law.

"This was a teaching moment, a chance for the debate on the role of the court and precisely how we want to bring it back to respecting the Constitution," Christopher C. Horner, an attorney with the Competitive Enterprise Institute, told Mr. Gillespie. "Instead, the president punted, on one issue where we least want to guess [about the outcome]."

Don't miss John Hawkins's extensive post on Right Wing News rebutting pro-Harriet arguments. An earlier Hawkins piece challenges the wait-and-see crowd:

[W]e're not going to learn anything about the candidate at the "job interview."

Things she may have said or written as a lawyer? It doesn't mean anything because she's taking a position for a client. Her time in the White House? Bush is citing executive privilege and saying he won't release any documents she wrote in the White House. What about future rulings on important cases like Roe v. Wade or Kelo v. New London? She won't talk about those cases on the grounds that she may have to rule on them as a Supreme Court justice.

So unless there's the equivalent of an Anita Hill hiding in the wings or Miers completely cracks under the pressure, we won't learn much about Miers at the hearings. In other words, it'll be a Rorschach test. There will be a lot of long speeches from Senators, some hostile questions, Miers will dodge them all, and then people will look at the inkblots and see what they want to see.

That was acceptable for a candidate like Roberts. Although he may not have had a long enough track record for many people's tastes, he was universally regarded as an absolutely brilliant lawyer and there were a few encouraging legal tidbits conservatives got to see from his time in the Reagan administration and on the bench. Moreover, before the nomination, Roberts was considered to be a highly regarded, top tier candidate.

On the other hand, Harriet Miers is feather light in the qualifications department compared to the other nominees that were being seriously considered. There was no one on the right before her nomination that considered her to be a great candidate and, quite frankly, few of the conservatives backing her today seem terribly enthusiastic about it.

Finally, Templar Pundit:

In terms of political strategy, this is a serious mistake. The Republican base is split between being enraged and being bored with the nomination. While not justified, it will be impossible to get around the charge of cronyism and the GOP will be stuck with Miers on the bench for years to come.

In contrast to John Roberts, we don't know where Miers stands on any major constitutional issues. With Roberts we knew his qualifications and we were able to get a pretty good understanding of his philosophy before his hearings.

___________________

¹ In another post urging calm, SCA characterized my argument as "erudite and remarkably non pompous," which I appreciate and aspire to.

(via A Certain Slant of Light)

Gonna Get Worse Before it Gets Better

UPDATES below

I'm hearing that this speculation backed by this Reuters story is accurate, imminent and potentially devastating.

More:

California Yankee points to an AP story that may be more accurate.

Still More:

Tom McGuire scoffs, several times.

Not So High Noonan

Peggy Noonan is brilliant, as usual:

[T]he Meirs pick was another administration misstep. The president misread the field, the players, their mood and attitude. He called the play, they looked up from the huddle and balked. And debated. And dissed. Momentum was lost. The quarterback looked foolish.

The president would have been politically better served by what Pat Buchanan called a bench-clearing brawl. A fractious and sparring base would have come together arm in arm to fight for something all believe in: the beginning of the end of command-and-control liberalism on the U.S. Supreme Court. Senate Democrats, forced to confront a serious and principled conservative of known stature, would have damaged themselves in the fight. If in the end President Bush lost, he'd lose while advancing a cause that is right and doing serious damage to the other side. Then he could come back to win with the next nominee. And if he won he'd have won, rousing his base and reminding them why they're Republicans.

He didn't do that. Why didn't he? Old standard answer: In time of war he didn't want to pick a fight with Congress that he didn't have to pick. Obvious reply: So in time of war he picks a fight with his base? Also: The Supreme Court isn't the kind of fight you "don't have to pick." History picks it for you. You fight.

Talkin' Bout a Revolution

Today's WaPo highlights increasing objections to the Miers nomination:

The conservative uprising against President Bush escalated yesterday as Republican activists angry over his nomination of White House counsel Harriet Miers to the Supreme Court confronted the president's envoys during a pair of tense closed-door meetings.

A day after Bush publicly beseeched skeptical supporters to trust his judgment on Miers, a succession of prominent conservative leaders told his representatives that they did not. Over the course of several hours of sometimes testy exchanges, the dissenters complained that Miers was an unknown quantity with a thin résumé and that her selection -- Bush called her "the best person I could find" -- was a betrayal of years of struggle to move the court to the right.

At one point in the first of the two off-the-record sessions, according to several people in the room, White House adviser Ed Gillespie suggested that some of the unease about Miers "has a whiff of sexism and a whiff of elitism." Irate participants erupted and demanded that he take it back. Gillespie later said he did not mean to accuse anyone in the room but "was talking more broadly" about criticism of Miers.

Tell Us How You Really Think

Ann Coulter's brutal. Fortunately she's on my side:

I eagerly await the announcement of President Bush's real nominee to the Supreme Court. If the president meant Harriet Miers seriously, I have to assume Bush wants to go back to Crawford and let Dick Cheney run the country.

Unfortunately for Bush, he could nominate his Scottish terrier Barney, and some conservatives would rush to defend him, claiming to be in possession of secret information convincing them that the pooch is a true conservative and listing Barney's many virtues – loyalty, courage, never jumps on the furniture ...

Bush has no right to say "Trust me." He was elected to represent the American people, not to be dictator for eight years. Among the coalitions that elected Bush are people who have been laboring in the trenches for a quarter-century to change the legal order in America. While Bush was still boozing it up in the early '80s, Ed Meese, Antonin Scalia, Robert Bork and all the founders of the Federalist Society began creating a farm team of massive legal talent on the right.

To casually spurn the people who have been taking slings and arrows all these years and instead reward the former commissioner of the Texas Lottery with a Supreme Court appointment is like pinning a medal of honor on some flunky paper-pusher with a desk job at the Pentagon – or on John Kerry – while ignoring your infantrymen doing the fighting and dying. . .

Conservatives from elite schools have already been subjected to liberal blandishments and haven't blinked. These are right-wingers who have fought off the best and the brightest the blue states have to offer. The New York Times isn't going to mau-mau them – as it does intellectual lightweights like Jim Jeffords and Lincoln Chafee – by dangling fawning profiles before them. They aren't waiting for a pat on the head from Nina Totenberg or Linda Greenhouse. To paraphrase Archie Bunker, when you find a conservative from an elite law school, you've really got something.

However nice, helpful, prompt and tidy she is, Harriet Miers isn't qualified to play a Supreme Court justice on "The West Wing," let alone to be a real one. Both Republicans and Democrats should be alarmed that Bush seems to believe his power to appoint judges is absolute. This is what "advice and consent" means.

Read the whole thing.

Why I Ignore the UN, Part XLI

The BBC held a mock "global election" where voters picked who they "would like to lead a fantasy world government." Since world government is a leftist utopian (actually, dystopian) dream, it's no surprise that -- except for Federal Reserve boss Alan Greenspan -- the winners spanned the range from liberal to loony:

1 - Nelson Mandela
2 - Bill Clinton
3 - Dalai Lama
4 - Noam Chomsky
5 - Alan Greenspan
6 - Bill Gates
7 - Steve Jobs
8 - Archbishop Desmond Tutu
9 - Richard Branson
10 - George Soros
11 - Kofi Annan

National Review founder William F. Buckley Jr. once said he "should sooner live in a society governed by the first 2,000 names in the Boston telephone directory than in a society governed by the 2,000 faculty members of Harvard University." Ditto here.

(via LGF)

The Trouble With Harriet, Day Two

After a depressing Monday, the first pundit I checked this morning was Michelle Malkin:

Well, it's a new day. Upon sober reflection, President Bush's nomination of Harriet Miers to the Supreme Court appears...even worse than it did 24 hours ago.

Bill Dyer, a/k/a Beldar, and Hugh Hewitt are among the few conservative bloggers defending her, along with American Thinker publisher Thomas Lifson. They're wrong:

• Smarts: RedState summarizes the evidence:

  Miers did not graduate from a top tier law school. She has no string of impressive legal writings. She has never served as a judge (let alone clerked for a Supreme Court Justice or Circuit Court Judge). She has never had a practice focusing on issues relevant to the United States Supreme Court. She has had nothing in her career that indicates she is something other than just a great lawyer -- and being more than just a great lawyer should be a key qualification for one of the final arbiters of American jurisprudence.

  Professor Bainbridge agrees:

  You don't take a Saturday Night Special to an artillery duel. The Supreme Court is the big leagues. You don't bring your B team to the World Series. Miers may well be a smart lawyer. But she went to the #52 ranked law school in the country and then headed up a Dallas law firm that one of my colleagues who practiced in Dallas tells me got big but was not in the first rank.

  True, Miers has a math degree. But since becoming a lawyer, she's written only two legal articles, neither of which was a "law review" type serious work. Gregory Djerejian at Belgravia Dispatch is alarmed:

  What matters is serious intellectual depth, profound understanding of constitutional law, potential greatness. She fails on all three counts. And, with all due respect to a successful private sector attorney, I have to say rather dismally.

  How does Harriet Miers describe her early schooling? "'I really came out of high school believing I wasn't bright enough to be a doctor,' Ms. Miers told The Dallas Morning News in 1991." And an anonymous ex White House staffer warned Miers "can't separate the forest from the trees." Is it important that Bush didn't even attempt to burnish her brains at Tuesday's press conference?
  
  Houston lawyer Beldar defends Miers's education and intellect:

  As for her law school in general: No, it's not now considered to be a national powerhouse. But when I was heavily involved in recruiting new lawyers for both Houston's Baker Botts and for the Houston office of New York-based Weil, Gotshal & Manges in the 1980s, we considered SMU Law School to be a solid regional law school, particularly strong in business and corporate law. Its talent pool wasn't as deep, but its top graduates — like its law review editors — were every bit as qualified as the students we recruited from Texas Law School or from the top out-of-state schools. Dallas firms generally had an even higher regard for SMU, with many of the best lawyers from Dallas firms serving as adjunct faculty members there; some students who'd been accepted at Texas Law School, or even at out-of-state top-tier law schools, chose instead to go to SMU for its local connections if they intended to stay in Dallas. Some of SMU's competitors have probably caught up with it since then, but when Ms. Miers was a student there, SMU Law School was widely regarded as the second-best law school in Texas.

  David Garrow also is optimistic, sort of:

  Historically speaking, then, no one can argue that Miers is unqualified, or even underqualified, to be a Supreme Court justice. [But] there's no denying that Miers' résumé looks awfully thin in comparison to [Chief Justice Roberts']. Roberts graduated from Harvard Law School (notwithstanding just an “A-“ from Laurence Tribe in constitutional law), Miers from Southern Methodist. Roberts clerked for then-Justice Rehnquist, Miers for Dallas federal district Judge Joe Estes. Roberts went to work for U. S. Attorney General William French Smith and then President Reagan; Miers worked at a large Dallas law firm.

  According to Hewitt, Miers has one unique credential:

  Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.
  
  I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

  Other conservatives support Miers. Former Bush Press Secretary Ari Fleischer called Miers "very smart." And Dallas lawyer James Francis -- chairman of Bush's 1994 gubernatorial campaign, and now an investment advisor -- praised her as "a lawyer's lawyer [who] grasps facts very quickly, in terms of sizing up a situation. She doesn't make careless mistakes and doesn't tolerate careless mistakes in others."
  
  Ann Coulter calls Miers "a complete mediocrity." So it's no surprise that the obvious comparison with Harold Carswell already surfaced. Don't underestimate that thread: in humorless Washington, satire can be fatal.



• Law nerd: Last month, Beldar highlighted the new Chief's most striking qualification:

  John Roberts' career has been that of a secular monk dedicated to the study and preservation of pure law at its most highly distilled and refined level. It was his absolute dedication to and mastery of that realm which enabled him to shrug off every political entreaty or demand thrown at him by any senator.

  Yet only 10 days later -- and without retreating (or referencing) that assessment -- Beldar's own praise for Miers neither mentions scholarship nor claims any for the nominee.¹ Instead -- supported by MaxedOutMama -- Beldar tries twisting Miers's inexperience into an advantage:

  If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions.

  Haven't we seen this movie before? You know the one: "Justice O'Connor: Political Jurist." By day, a mild-mannered Ms in black robes; but at night she summons special powers to become--Supreme Legislator!
  
  Bush's selection likely will have broad and lasting implications for future nominations. Since public opinion began to reject Warren Court excesses in 1970s, conservative Republicans held the moral high-ground of neutral principles. We insisted the Constitution meant what it says; rejected result-oriented judicial legislation; we weren't the party of hypocrites. The anonymous Con Law Professor behind StealthLawProf echoes this concern:

  the GOP has lost all credibility with the public in presenting itself as the party that governs responsibly, respects the federal courts by appointing highly qualified jurists, and puts principle over politics in the courts.

  A Supreme Court nomination shouldn't force conservatives to choose between their President and their principles. As a minimum, "President Bush has wasted an opportunity to use the nomination process to try to advance the public understanding of what the battle over the judiciary is all about."



• Experience: Miers, of course, isn't a judge. And while not necessarily a pre-requisite, more than 30 years have elapsed since anyone other than a judge was nominated.² 'Associate Justice' shouldn't be an entry-level job.
  
  Boston University Law Prof Randy Barnett agrees, in the WSJ:

  To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

  Some conservatives openly cheered for non-judges, or even non-lawyers! I concur with where Jonah Goldberg ultimately came down:

  [T]hese arguments veer off into anti-intellectualism, which is just a bad place for conservatives to be. Personally, I think conservatives must be the defenders of excellence and standards, even when that is inconvenient to other conservative ends." Several readers have made the case that she may not be that qualified, but she'd be a reliable vote for the more brilliant conservative justices. I'm all for reliable votes. But this borders on a celebration of hackery and I'm unsympathetic to that.

• Originalist: President Bush promised to nominate only Justices "who would not . . . write laws, but who would be strict interpretations of the Constitution." Miers has never publicly hinted at her legal philosophy. Is Bush certain Miers qualifies? Even if he is, how can anyone -- on either side -- assess her similarities to Scalia and Thomas--a not inconsequential motive for Bush's support from conservatives. Even CNN resorted to guesswork:
  
  
  
  (source: National Review)
  
  It's no answer to wait for forthcoming Senate Judiciary hearings. Having defended Roberts's right to be silent before the Senate, conservatives face an awkward conflict between blind faith and principle.
  
  In any event, as Professor Barnett says, a Supreme Court Justice should be better than 'no comment':

  Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question.

  Some of the hope-over-experience crowd point to Ms. Miers efforts to overturn the American Bar Association's pro-abortion position. I remember those events well: I'd quit the ABA in protest, and pushed for its repeal. But we didn't debate Constitutional interpretation. Rather, our strongest argument was procedural: that, as a trade association for lawyers, taking political positions inevitably would offend both potential member lawyers and legislators. So Ms Miers opposition to the ABA's abortion position provides scant clues about her views on the Constitution.
  
  Still, score one point -- only one -- for Harriet, first noted by Hewitt, who passes along a readers insight reminding skeptics that Miers was, I am sure, "involved in many discussions about what it was that W wanted in a nominee [and thus] knows that he wants an Originialist, that he wants someone in the mold of Scalia and Thomas." Ronald Cass, formerly dean of Boston University Law School, also defends Miers on this ground.
  
  As does the President, who made the same point at this morning's press conference:

  [S]he knows the kind of judge I'm looking for -- after all, she was a part of the process that selected John Roberts. I don't want somebody to go on the bench to try to supplant the legislative process. I'm interested in people that will be strict constructionists, so we -- and I've told that to the American people ever since I started running for office. I said, vote for me, this is the kind of judges I'll put on the bench. And there should be no doubt in anybody's mind what I believe a judge -- the philosophy of a judge. And Harriet Miers shares that philosophy.

  Consider this: does Miers tout originalism at her Senate hearing? Would it gain more Republican support than it forfeits among Democrats?



• Immunity to the "Greenhouse effect": Many supposedly conservative Supreme Court Justices move left--a phenomenon conservatives call the "Greenhouse effect" -- after the NY Times' Supreme Court beat reporter Linda Greenhouse -- and liberals label "growth" or "maturity." The Christian Broadcasting Network recounts the sad story:

  The history of Republican presidents being burned goes back decades. Perhaps the biggest Republican presidential blunder was made in the 1950s by Dwight Eisenhower, when he picked Earl Warren to head the high court. . .
  
  Under Warren, the high court became an activist court. It started to exert its influence on society like never before. Some of their decisions were far-reaching, such as eliminating prayer and Bible reading in school in the early 1960s.
  
  Years later, President Gerald Ford nominated Justice John Paul Stevens to the high court. He turned out to be a pro-choice liberal.
  
  President Nixon also brought to the Supreme Court the infamous Harry Blackmun. He went on to write the opinion in the 1973 Roe v. Wade decision, which legalized abortion.
  
  President Reagan’s record was not much better. First, he nominated Sandra Day O’Connor, who proved to be a major disappointment to conservatives.
  
  Manny Miranda, former counsel on the Senate Judiciary Committee, said, "President Reagan wanted to have a woman, and at that time, in the early 80s, there were very few conservative women with a paper trail, and so they went with someone they knew a little bit, but they didn't know well enough."
  
  A few years later, Reagan had another chance to pick a conservative, and instead, that pick became Anthony Kennedy. Some of his opinions have gotten scathing reviews from conservatives.
  
  "They picked him because, on paper, he appeared to be a conservative, but when you actually looked at his life and his record and his choices, it showed a person who was a populist - and populists are like politicians. They put their wet finger in their air and determine where the wind is going and that is not what a judge should do," Miranda said.
  
  And then under the first President Bush - a blunder that conservatives are still talking about: David Souter. Not much was known about him at the time, but Bush advisers promised that he was a staunch conservative. Wrong. He sides with the liberal wing of the court nearly all the time.

  Tuesday morning, Bush insisted Miers would be immune:

  I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today. She'll have more experience, she'll have been a judge, but, nevertheless, her philosophy won't change.

  Paul Mirengoff at Powerline is cautiously optimistic:

  I suspect, is that she's not likely to "grow in office." Having been through five years of combat with President Bush, I doubt that she cares much how the Washington Post or the liberal Washington social establishment views about her. Nor is she likely to be influenced by the liberal Justices, particularly the ones who voted against Bush in Bush v. Gore. Whatever kind of conservative Miers is now, if any, she's likely to remain.

  I wish I could be that confident. Without more, I'm leaning toward Jeff Goldstein's position: "Miers? Isn’t that the German word for “Souter”...?"



• Cronyism: Obviously, the President's choice has only one explanation, as Professor Barnett notes:

  Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?

  Of course not.
  
  With the fur still flying about former FEMA boss Mike Brown -- whose previous experience was heading the Arabian Horse Association -- this is the worst possible time for Bush to elevate a relatively unknown, long-time advisor. And while proximity to the President shouldn't disqualify, neither is it enough, says the National Review:

  Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field.

  For the best counter argument, see Scrappleface.



• Bush on the run: Powerline's John Hinderaker:

  It's hard to avoid the suspicion that Bush's nomination of Miers reflects some kind of deal with the Senate Democrats. Such as, the Dems gave Bush a list of candidates they would deem "acceptable" (pending Judiciary Committee hearings, of course), and Bush chose the best candidate he could off that list.
  
  Is that what happened? I don't know, but the theory seems to fit the facts. Why would Bush accede to the Democrats rather than fight for another Roberts-type conservative? The only reason I can think of is that liberal Republicans in the Senate, starting with Arlen Specter, told him they wouldn't back him up if he replaced Sandra O'Connor with a strong conservative. There are enough RINOs in the Senate to make such a threat credible, I think.

  Bush all but pleads guilty to the charge:

  I actually listen to the senators when they bring forth ideas. And they brought forth some really interesting ideas during the course of our conversations, some told me directly, many brought to me by people on my staff. And one of the most interesting ideas I heard was, why don't you pick somebody who hasn't been a judge? Why don't you reach outside the -- I think one senator said, the "judicial monastery."
  
  I thought it was an interesting idea. And I thought long and hard about it. I obviously looked at whether or not other Presidents had done -- made that decision; they had. And so, recognizing that Harriet will bring not only expertise, but a fresh approach, I nominated her. And she'll be a really good judge. And as I said, I appreciate the reception she's gotten at Capitol Hill. After all, they're going to -- they'll decide.

  MaxedOutMama and NRO's Rich Lowry and Kathryn Lopez speculate that defering to RINOs/liberals may signal that Bush now more earnestly embraces diversity/affirmative action for woman. And am I paranoid in worrying that leftist cautious optimism can be read as "one for you, one for me?" Not good.

In sum, I'm still open-minded. But Miers, and the Bush Administration bear the burden of proof--and a high hurdle.
______________

¹ Beldar admits "Harriet Miers hasn't argued in the United States Supreme Court." By contrast, John Roberts appeared before the Supremes 39 times before becoming Chief.

² Some well-regarded Justices had no judicial tenure. But, since World War II, only eight justices lacked prior judicial experience: William Rehnquist, Lewis Powell (both 1972), Abe Fortas (1965), Byron White (1962), Arthur Goldberg (1962), Earl Warren (1953), Tom Clark (1949), Harold Burton (1945). Three of those (Rehnquist, White and Clark) had been high-ranking lawyers for the Department of Justice.

Harriet Who?

If I barely knew her name before today, how good can she be? As Andrew McCarthy says:

A large part of the skepticism and disappointment over the President’s choice is that we don’t really know what Harriet Miers thinks and whether she has a developed judicial philosophy. Nor will we know. Indeed, it’s entirely possible that SHE doesn’t know. This is not to disparage the career she has had, which has included some impressive jobs (such as the one she has now). It is simply to say that she does not appear to have had the sorts of jobs that force a lawyer, regularly, to think through to settled positions on complex constitutional (and other) issues – in the face of withering pressure from the best the face the opposing viewpoint has to offer.

Paul Diegnan nails it:

Harriet Miers is many things, but she is not a Constitutional scholar, well-seasoned in elective office, or someone who has made many public speeches or presentations on the workings of government. She is an unknown and unproven functionary whose chief virtue is the one virtue that we must reject--a strong tie to a particular chief executive.

At best, Miers is Gonzales without the torture.

I was enthusiastic about John Roberts both because of his conservative legal views and because my pride in his achievments made Roberts easy to defend. Like David Frum, I expected more of the same for O'Connor's seat:

On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court. Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate.

Comparing Miers and McConnell before the nomination, Mickey Kaus asked rhetorically, "Assume they're both fine people. If you had to make a snap decision, which one should be on the United States Supreme Court?"

Harriet Miers is no conservative. She previously donated to Al Gore, Lloyd Bentsen, and the Democratic National Committee. She supported U.S. participation in the International Criminal Court. The President insists he "know[s] her heart," which is another way of saying "trust me." The last time Presidents named Bush said that, we got Putin and Souter. What happened to the venerable Republican philosophy "trust but verify?"

Unless new evidence appears, I agree with John Hawkins: "This is undoubtedly the worst decision of Bush's entire presidency so far."

(via Instapundit)

What I Saw at the Counter Revolution

Photojournalist and PeaceCommies blogger Jorge Torres posted 58 shots from last week's protest in DC; my favorite is:



(source: PeaceCommies.Com)
(via Moonbattery)

Armored and Ready

Possibly prompted by last-week's Washington Whine and Sleaze, Marine vet John at Pundits My *ss demolishes the claim that Kerry/Hillary/Gore/Sharpton/Boxer would be a better war President than Bush:

Sure there are problems, but from what I could see the system was working hard to upgrade our equipment. Should we have waited until every soldier had an Interceptor with SAPI plates before invading? Should we have waited until every vehicle in the Army is up-Armored. According to Paul Reikhoff we should have. I really would have like to have gone to combat with a hand held death ray. Should we hold off on the next war until we have phasers? Rumsfeld received scorn for his statement: “You go to war with Army you have, not the Army you want.” But the scorn was undeserved. That’s how it works. And credit where credit is due, it’s Don Rumsfeld who has pursued the transformation of the military to maintain technological superiority, to include personal defense.

(via NIF)

QOTW

From Sigmund, Carl & Alfred:

Wars are won by fighting, not by talking. Neville Chamberlain proved that in the last century. People cannot be talked out of evil. Once the 'hearts and minds' have accepted evil, the only way to rid them of that evil is by making it impossible for them to impose that evil on others. They cannot and will not be equals to us if hate dominates their agenda.

America, Britain, France, Canada and the other Allies died together on battlefields, so that they might live together. That doesn't mean they will always agree. It means they will always live together in peace, no matter their differences.

Islamists wish to die, in declared Jihad, so that the principles of freedom are extinguished. . . People who are free, determine political agenda. The Islamists impose their political agenda on others.

Lower Bound

Twenty-one years ago this weekend, I hosted a changing-parties party celebrating my new allegiance and, I was sure, an adult astuteness.¹ Though an acknowledged partisan and ideologue, loyalty needn't blind: when pressed, I'll concede there's sons of bitches in each party. Still, I'm convinced the mindless and malicious are both more abundant and more annoying among Democrats.² Yet with evidence necessarily anecdotal -- debate deteriorating to list-making -- formal proof was elusive.

Until now. On Thursday, John Roberts was confirmed and sworn in as the 17th Chief Justice of the United States. A long-time fan of Judge Roberts, I'm overjoyed about and for Chief Justice Roberts. And the roller coaster's twisty track is primed for new peaks and plunges when Bush nominates O'Connor's replacement this week.

As jubilation subsided, I realized Roberts' confirmation supplied corroboration of my formerly unproven classification of R's and D's:

• Roberts is a good man, an excellent lawyer and a tremendous jurist. Sure he's conservative--but also may be the most qualified Chief Justice since Taft or Hughes.



• President Clinton nominated a former ACLU General Counsel to the Court. Ruth Bader Ginsburg is unquestionably leftist--probably more liberal than Roberts is conservative. Yet for Ginsburg -- a solid jurist, but no Roberts -- her politics weren't grounds for opposition--she was confirmed 96-3.³



• On Thursday, Roberts got 19 fewer votes than Ginsburg. Twenty two Senators -- Democrats all -- voted "nay":
  
  
  • Akaka (D-HI)
  
  
  • Bayh (D-IN)
  
  
  • Biden (D-DE)
  
  
  • Boxer (D-CA)
  
  
  • Cantwell (D-WA)
  
  
  • Clinton (D-NY)
  
  
  • Corzine (D-NJ)
  
  
  • Dayton (D-MN)
  
  
  • Durbin (D-IL)
  
  
  • Feinstein (D-CA)
  
  
  • Harkin (D-IA)
  
  
  • Inouye (D-HI)
  
  
  • Kennedy (D-MA)
  
  
  • Kerry (D-MA)
  
  
  • Lautenberg (D-NJ)
  
  
  • Mikulski (D-MD)
  
  
  • Obama (D-IL)
  
  
  • Reed (D-RI)
  
  
  • Reid (D-NV)
  
  
  • Sarbanes (D-MD)
  
  
  • Schumer (D-NY)
  
  
  • Stabenow (D-MI)
  
  Notice how many dissenters are potential 2008 Presidential candidates: Bayh, Biden, Boxer, Clinton, Kerry and Obama. Simply outrageous.



• Two football teams of democrat "no" pretended Roberts hadn't answered their questions, despite chiding from Justice Ginsburg:

  Judge Roberts was unquestionably right. My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court.

  A contemptible pretext, says Paul Weyrich:

  The 22 Senators who voted against Roberts profess to believe that Roberts didn't answer questions posed by the Senators. Roberts followed the Ruth Bader Ginsburg precedent, herself a former ACLU counsel, who often had expressed controversial opinions. During her Supreme Court confirmation hearing she refused to hint at how she would rule on cases which possibly might come before the Supreme Court. Of course, the next nominee will go down the same path.

• The coming months will be worse, as leftist extremists like People for the American Way turn their slime machine up to "11":

  Every Supreme Court nominee should be held to a high standard, which includes a demonstrated commitment to protecting Americans’ fundamental rights, liberties, and legal protections. Given the pivotal role that Justice O’Connor has played in recent years, the stakes with her replacement are enormous.

  At heart, Democrats employ a hypocritical double standard, as NRO's Andrew McCarthy writes:

  Does anyone really think it needed to be established that conservative judges “have every right to serve on the higher benches”? That is self-evident. But, in today’s arrangements, notwithstanding a president reelected with more votes than any president in history and a one-sided 55-45 margin in the Senate, that which is self-evident somehow needs to be reestablished as a “principle” whenever a determined minority objects.

  Why the new, transparently political, standard, asks Dr. Sanity:

  When did the Supreme Court of the United States become yet another entitlement program for the Democrats?
  
  Where is it written that the Supreme Court must be "ideologically balanced"? Who has ever claimed that the minority party has any rights (except the usual "advise and consent role") to determine who is selected by the elected President of the US?

  Partly because, as always, leftists confuse law and policy:

  [T]here is no precedent or sound argument supporting the claim (one that, unfortunately, seems to have great currency in the press) that a President is somehow supposed to preserve "balance" on the Court, or to replace retiring Justices with new Justices thought to be like-minded. Clarence Thomas replaced Thurgood Marshall; Ruth Bader Ginsburg replaced Byron White.

• In sum, there's no better description of the just say no chorale: unprincipled.

Conclusion: The Roberts vote quantifies the difference between Republicans and Democrats. Though the maximum count of scum per party remains uncertain, we can derive the minima. Senate action on Judges Ginsburg and Roberts establish a lower bound for each party. Now we can be confident that at least 3 Republicans are jerks--as compared to 22 unprincipled Democrats. A clear advantage.

Republicans won't need Swift Boat Vets in '08. Twenty-one years after I wised up, and three years ahead of schedule, aspiring Democrats already are acting like lying hypocrites.
____________________

¹ I last voted Democrat in 1978. I'd moved to Washington in part to work with the Reagan's 1980 campaign, and formalized the flip while volunteering for Reagan's re-election.

² Put differently -- and contrary to the old quip -- sometime in the mid 1970s, Democrats became both the evil and stupid party.

³ Other recent confirmation votes:

John Paul Stevens, 1975: 98-0
Sandra Day O'Connor, 1981: 99-0
Antonin Scalia, 1986: 98-0
Anthony Kennedy, 1987: 97-0
Ruth Bader Ginsburg, 1993: 96-3
Stephen Breyer, 1994: 87-9

The Case of the Missing Parishes

First raised by Bob Harris, "Freepers" and "DUmmies" are debating whether President Bush, or then-FEMA boss Mike Brown, accidentally or deliberately delayed Federal help for the Southern-most Louisiana parishes, allegedly majority-Democrat. Or whether Governor Blanco inadvertently slighted Louisiana's hardest hit areas. The Katrina Coverage blog is all over the issue but -- as far as I know -- the question's still unresolved.

The four most relevant letters:

1. August 27: Blanco's request for an "emergency" declaration



2. August 27: Bush's "emergency" declaration



3. August 28: Blanco's request for a "disaster" declaration



4. August 29: Bush's "disaster" declaration

There seems to be no question that # 3 and # 4 each included all of Louisiana. But Bush's emergency release (# 2) covers only northern parishes (excluding New Orleans), whereas Blanco's request (# 1) lists no parishes at all. What happened? Was Federal assistance to New Orleans mistakenly delayed two days?

That ain't all. Testifying before Congress (page 51), Mike Brown said the August 27th White House declaration copied Blanco's parish list. But neither of the two possible Blanco letters (an August 26th state declaration and the August 27th request to Bush) narrow the affected area to the parish level. Katrina Coverage blog speculated Brown is mistaken or lying.

There's a third possibility. One Freeper wondered whether Blanco's August 27th letter, Press Release number 976 on the official state website, was revised. Seems implausible. But Katrina Coverage blog asks: where is press release number 975? (Note: there are other gaps in sequential numbering: #s 959 and 957.)

But most importantly, would the White House or FEMA catalog Louisiana place names on its own? These aren't normal, red-blooded American counties after all, but weird -- possibly French? -- parishes. Did the Administration have a parish list on August 27th? Are there any imaginable circumstances (this explanation apparently is a red-herring) where FEMA wouldn't merely cut-and-paste from Blanco's request?

Any ideas?