“Since the general civilization of mankind, I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpation” -James Madison

Tuesday, October 11, 2005

Miers continued

Wow, I got me a li'l ol' Instalanche (Thanks Glenn)!

Great comments, folks -- pro and con. Not only have I learned a bit more, but it's given me the opportunity to think about my own positions and some of the things I had written.

Yesterday I put forth the proposition that the Miers nomination is the culmination of an agreement between the President and the adult Dems regarding his prior pick of Justice Roberts, based on the political calculations of this Congress. The President is aware that the confirmation process is now highly politicized, partly due to the recent activist positions the Court has taken. The President is also aware that he does not have sufficient numbers of reliable votes to force a Scalia through, because he can count on Dems to provide an unbreakable wall with the assistance of a handful of unreliable Reps.

I am not a cheerleader for Harriet Miers. I don't know much about the lady, only that the President trusts her. That's not good enough for many people (I am not yet decided if it is for me), and I can certainly understand and sympathize with that. This President is not particularly conservative on many issues, from spending to border control to education and beyond. By most accounts, however, his judicial picks have been very pleasing to conservatives. At any rate, he is the President and He Gets To Pick.

There is no requirement for a Justice to be a judge, or a scholar, or even a lawyer. The recently departed Rehnquist was not a judge prior to assuming his place on the Court (as were over 30 other Justices in our history). The Founding Fathers largely were not legal scholars or lawyers. They were farmers, merchants, bankers, soldiers, fishermen, trappers, loggers, and many other blue-collar-ish professions. They gave us a document that anyone who reads English can understand. It is a rule book that spells out exactly what the federal government can do, and it specifies that anything unsaid is to be the responsibility of the People to deal with on whatever level they deem necessary -- state, county, city, etc.

It does not take a Harvard JD to get this.

Activism in the legal system is repugnant to all people of liberty. Regardless of the side, regardless of the issue. I would no more want a Court that makes laws I might otherwise agree with, than I currently do with the same Court that has illegally written questionable laws de facto like Roe, Kelo, and many others. It would be every bit as wrong to have Conservative activism as the liberal activism has been.

I fear that many conservatives have been waiting for this moment for so long, that they are spoiling for a fight. Many comments address the idea of having the majority and wasting it, or of forcing the issue and 'settling' later if the force does not work. Some have brought up that Scalia was verbose about his philosophy and was confirmed unanimously. Others point to the 2006 elections as a net loss for Reps so they say we should vote while the voting is good.

Good points, all, but they are indicative of my original proposition: We do not have the numbers necessary. There are not 50 or 51 solid (R) votes for a McConnell, Luttig, Brown, et al. There would be at best 47 or 48, and I highly doubt any (D) will break ranks on such outspoken conservatives, even the Red-Staters. It is too polarized in the Senate, and the process has become too litmus-tested on both sides for a fight of that nature with our current numbers.

I would LOVE McConnell, Luttig, Brown, or any of the other party favorites. Having a young Scalia-type on the Court for 40 years would be a dream come true.

Unfortunately we are awake and not in the dream world. The President has proven to be a savvy pol when it comes to getting his way against the odds. There is no reason to believe that he has messed this one up. It might be the case, but none of us can know that now. Again, some people are not comfortable with that, which I completely respect. Souter was and is a disaster, but he was also an unknown to the elder Bush, who trusted his aides far too much. This Bush is much more in his own loop, and has a proven record of success with his judges.

Some have questioned why avoid the fight even if you can't win -- just make the point and stand up to the Dems. To me that's a false proposition that assumes (once again) that this is happening in a vacuum. We are still at war, with the constant media drumbeat of quagmire and LBJ comparisons. We have come through a couple of disastrous storms that have affected us all economically and the president politically (fairly or not). We are beginning the ramp-up to the 2006 elections. There is a very real likelihood not only of armed conflict with Syria and Iran, but also of a burgeoning worldwide flu epidemic. There are LOTS of issues to deal with, not only for the President but also the Senate. It makes sense to me that we look at the political landscape, take what we can right now and save the energy for another fight on another day when we have a better chance of winning.

To everyone who is considering abandoning the party in 2006: You're playing right into the hands of the Socialist Marxists. They are salivating over this division, and by not voting or voting Lib you will be giving the Senate back to the Donkeys, making this situation even worse. I understand disappointment, but we live in a real world, not some alternate universe where Atlas Shrugs and the Howard Roarks are proven right at the end. This is politics, which by necessity involves COMPROMISE and getting what you can and fighting only when you win. Guerilla tactics and desperate gambles won our Revolutionary War, but they tend not to work in capitol domes. We need to concentrate on getting any (R) into the Senate for numbers and likelihood of 50 or 51 spines, and do our best to replace RINOs with real conservatives at the primary level.

Screaming at this point for a fight sounds very much to me like a Howard Dean yeargh. Give Bush some credit -- he's let us down on many things, but on judges he's got the goods. He also knows the Dems and RINOs better than they think, and he knows what he can get and what he can't.

Worst-case: she's another O'Connor but will probably not have more than 10 or 15 years on the Court. I do not believe based on what I've seen, that she will go along with the activism at all. She may or may not be particularly conservative (insiders claim she is personally, but we don't want that personal bit involved in decisions, right?), but it's a good bet she would stand with the originalists on many issues. If confirmed, I believe she will prove to be a very pleasant surprise for the shouters.


1 Old Comments:


Thanks for your comment today. ... Well taken and congratulations on the great post here. -- Frank L

By Blogger FranklySpeaking, at 12/10/05 9:18 PM