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Saturday, October 15, 2005

Beldar on JPod on Merritt on Miers

JPod links a post by liberal blogger Jeralyn Merritt over on TalkLeft as another argument that even faint praise from the Left is more reason for the Right to condemn Harriet Miers. Here's a paragraph he didn't quite quote in full, though (boldface mine):

The main thing to keep in mind are the alternatives. From a legal standpoint, we lucked out with both Roberts and Harriet Miers. If she were to withdraw and Bush were then to repay the radical right what they think he owes them, we [on the Left] will be far worse off. We didn't get Wilkerson or Luttig from the 4th Circuit, Rogers Brown, Edith Jones, Priscilla Owen or Alberto Gonzales. But we may, if Harriet is not confirmed.

Now, I'm pretty sure that notwithstanding his disdain for Ms. Miers, JPod would rather see her as the nominee than AGAG. Not even JPod (whose sense of humor I greatly admire) could bring himself to argue from this — "Lo! Behold! Miers must be even to the left of Gonzales, for the Left has said it, and it must therefore be true!"

In fact, Ms. Merritt's post is pretty hard to argue with, from the perspective of someone on the political Left. And she points out one possibility, solidly grounded in both the Constitution and very recent historical precedent, that I don't recall seeing anyone at NRO address yet: If this nomination is defeated, stubborn ol' Dubya may recess-appoint Ms. Miers and wait for the 2006 re-roll of the Senate, then re-nominate her in 2007 and point to her intervening judicial experience and track record from the bench as (new) qualifications. Now, I know Laura tells him to try to control that smirk. But the man has a sense of humor, and he just might think that was pretty funny.

Posted by Beldar at 02:41 AM in Law (2006 & earlier) | Permalink

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Comments

(1) Watchman made the following comment | Oct 15, 2005 4:33:42 AM | Permalink

I don't believe Merritt's approval of Miers disqualifies her from consideration, but as a (non-elite) religious conservative, I agree with her. I believe liberals did "luck out" with Bush's pick. He could have named a proven and tested conservative with a record. He did not. The basis of my opposition to this nomination (which did not arise from NRO, the Weekly Standard, WSJ or anywhere else) is the missed opportunity. I think it is possible, though nowhere near certain, that Miers will prove to be a reliably conservative vote on the court. But that will not mitigate the lost opportunity.

(2) Dan made the following comment | Oct 15, 2005 9:27:55 AM | Permalink

Beldar,

With SDOC still on the bench, everyone I have read who discusses the issue says there can't be a recess appoointment as there is no vacancy. In my view, Bush should have sent her letter back to her and told her about the gravel pit case.

(3) V the K made the following comment | Oct 15, 2005 10:54:23 AM | Permalink

It seems that reports of Harriet Miers role in vetting nominees may have been greatly exaggerrated

(4) David Walser made the following comment | Oct 15, 2005 12:32:35 PM | Permalink

Watchman - I understand your disappointment because I share it. Based on everything I knew at the time, I would have nominated someone else. I had hardly even heard of Meirs before her nomination. However, unlike you and me, the President was not able to consider this nomination in isolation. The President had been told by Senate leaders that many of those we might have nominated could not be confirmed. Many of us would have (and have) argued to fight the fight anyway -- even if we lost. Again, the President is charged, not with fighting battles, but with getting something -- a lot of somethings -- done. Among these somethings if fighting the war on terror, nominating conservatives to the lower courts, and other matters having nothing to do with this nomination, yet he needs the Senate's cooperation for ALL of these somethings that need doing. Given all these factors, is unreasonable for the President to have nominated Meirs? I don't think so.

(5) Kevin made the following comment | Oct 15, 2005 4:14:34 PM | Permalink

Actually, if she had a year on the court as a recess appointee it would probably be a lot easier to support her, or clearly obvious why she should be opposed, for a permanent appointment.

(6) pj made the following comment | Oct 16, 2005 9:38:42 PM | Permalink

Beldar - Since O'Connor's resignation takes effect only on the confirmation of her replacement, there's no vacancy for a recess appointment.

Maybe O'Connor would retire immediately to accommodate the President's desire for a recess appointment, but it seems to make the Miers recess scenario even less likely.

(7) Beldar made the following comment | Oct 16, 2005 10:10:57 PM | Permalink

PJ, you're right, and that's a good point, but I'm assuming that if Dubya asked Justice O'Connor to step aside for a recess appointment, she probably would. She wants to leave the Court, but to do so without it having to run short-handed.

(8) Jeremy Pierce made the following comment | Oct 19, 2005 10:03:25 PM | Permalink

If PJ is right, then Bush can't nominate anyone either. But we have precedent of that, so it's accepted practice at this point. That precedent for allowing nominations for technically non-vacated positions should count for recess appointments for technically non-vacated appointments.

(9) Mike made the following comment | Oct 21, 2005 5:51:17 PM | Permalink

Hi All,

I had not thought of a recess appointment. It is an interesting way, if possible, to put quite a few people in their place. For a president who turns the other cheek too frequently (still 0.0 vetoes?), it would be a very interesting change. I am all for completely uninhibited debate, but too much about the Miers' confirmation has been a bit too visceral and largely without examined facts. I still have an open mind. As almost everyone, I expected a different nominee. I still am not willing to go off a cliff as the lemmings on the Left seem to do frequently. Things have not devolved into a lefty blog sort of situation, but I do not recall anything else getting this close to such nuttiness. This sort of situation will only invite lefty trolls. Who needs that nonsense? I expect better, and I trust that the level of hubris on the anti-Miers' crowd will moderate. Hugh Hewitt, Hedgehog, and Beldar are all able lawyers, and they should not be dismissed out of hand. Disappointment happens all the time; it should not necessarily lead to a closed mind.

Mike

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