Monday, October 31, 2005

Alito for SC!

I know Goomba will probably object to having another conservative Italian nicknamed "Scalito" on the bench, but the President is set to nominate Judge Samuel Alito, Jr. of the Third Circuit to be the next SC justice.

More details throughout the day at confirmthem.com. Me? I gotta work.

My reaction? Very pleased with this superb pick. Kos and the Demos are already apoplectic, and that ought to tell you something. Recall how they just came unglued when Harriet Miers was nominated? Me either. The Demos are making noises about a filibuster. Bring it on. They will get their heads handed to them.

Alito is a brilliant guy, and he is superbly qualified by any standard. In fairness, the media gave him the "Scalito" nickname, and there will probably be some differences in process/methodology between him and Justice Scalia. But he is a solid conservative by any objective measure, and he has been on conservatives' short lists for a SC vacancy for years. He is affable, extremely well-spoken, and will make a fantastic appearance in the committee hearings.

How the WH can swing so wildly from Harriet Miers to this nominee is beyong me, but ... I am not going to complain. This Edith Jones fan is fully on board.

I have to chuckle at those who said the President would pout and nominate Alberto Gonzales, or some other "moderate" type in the wake of the Miers debacle. I knew it wouldn't happen. Thank you, Pres. Bush.

Now, the fight is on. This is a fight we knew we were going to get any way. Now, at least, we have a nominee worth fighting for, and some one who can carry the banner of original intent. Now, the troops are on the beach.

Let's roll.

P.S. Very rude of me. I almost forgot: Happy Halloween, Demos. Boo!!

Friday, October 28, 2005

The Evil that is a Political Prosecution (cont.)

In a recent post, I discussed the "evil that is a political prosecution." In my view, these are dangerous legal/quasi-political animals. They may eat up your political adversary today, but tomorrow they will eat us all up.

So what do I mean by "political prosecution"? First, it is a criminal action. As such, the power of the state is arrayed against the individual defendant. Second, these prosecutions are usually not for, or related to, crimes recognized at common law, such as burglary, sexual assault, murder, etc. In other words, the crimes are created by statute and interestingly are often not readily identifiable as crimes by ordinary people (As an example, ask some guy on the street what is the evil that Tom Delay is accused of doing). Third, political prosecutions occur as a result of a complaint by a political opponent seeking a political advantage via the proceedings.

Tomorrow, Scooter Libby, the VP's Chief of Staff, apparently will be indicted. I agree with Michael Barone that an indictment of either Libby or Karl Rove in the Plame matter would be a "grave injustice".

Let me explain. In '02-'03, certain elements within the CIA were fighting their own war with the White House. This was, in fact, a political war, with the two sides having different views about the desirability of taking out Saddam. In spite of the chain of command and their roles as public servants, however, Democrat Joseph Wilson and his Democrat wife were aiding the CIA forces in rebelling against WH policy. The punch line here in this whole mess is that Joseph Wilson is a lying, political hack who was, in the course of his political dispute with the WH, caught in the act of lying and hacking. Barone writes:
True, Rove and Libby did seek to discredit Joseph Wilson -- as they should well have done. As the Senate Intelligence Committee concluded in a bipartisan report in July 2004, just about everything Wilson said publicly about his trip to Niger was untrue. He said that he had discredited reports that Iraq sought to buy uranium in Niger. But the CIA people to whom he reported concluded that, if anything, he substantiated such reports. He said that he pointed out that certain other intelligence reports were forged. But the forgeries did not appear until eight months after his trip. He said his wife had nothing to do with his trip to Niger. But it was she who recommended him for the trip. And on and on.
So, after Rove and Libby sought to set the record straight, Wilson and his political allies sought to cast these actions as criminal, intimating that Plame's life had been endangered. This is garbage. As Barone points out, for a variety of reasons it has become apparent that an indictment for the crime of "outing" Plame appears untenable. Thus, Libby is apparently to be charged only with his failure to be honest with the grand jury during the special prosecutor's probe.

Let's get some preliminaries out of the way. Should one lie to a grand jury? Of course not. It's wrong and it undermines the investigatory process. End of story. But should one be criminally prosecuted -- and potentially face jail time and the loss of a career -- for it? Well, it depends. Yes, it depends.

If one is lying to cover up a real crime, then yes, in my judgment a perjury/false statement indictment is within a prosecutor's discretion. If, however, one is lying to cover up ... well, something that shouldn't have been investigated in the first place, i.e., the prosecutor has no grounds to pursue an indictment for an underlying crime, then no ... absolutely not.

Perhaps a further, albeit imperfect, illustration is in order. Imagine you are sleeping soundly in your bed and then two guys break in, shine a flash light in your eyes and start questioning you about your whereabouts the night before. Realizing that you were out late at a place/with a person/in a situation where you should not have been, you lie. You lie big. Well, it turns out that there was a murder committed last night. You didn't commit it, but you are charged with making a false statement to a police officer, though. Too bad. And, oh yeah, your angry neighbor told the authorities to check you out. And by the way, your neighbor's friend actually committed the murder. But you committed an offense. Rules is rules. Feel good about that prosecution? You get the picture.

There are so very many things that are technically offenses (maybe this is what Sen. Hutchinson was referring to in her inartful remarks about perjury being a "technicality") but in reality no harm is done to the public, and thus a prosecutor accordingly should not proceed. Indeed, this happens every day. It is called prosecutorial discretion. The rules of ethics governing criminal prosecutors require a prosecutor to seek justice, not simply a conviction.

The bottom line: It is grossly unfair to criminally prosecute some one for "covering up" something that was not, in fact, a crime. This is especially so when such a prosecution is initiated by political enemies of the defendant and no harm has been suffered.

In such a case, the government, instead of representing "the people", really prosecutes "the people".

Thursday, October 27, 2005

Good Morning All

Harriet Miers withdraws. My initial response? This was a dignified, smart, and classy move by her and the White House. I wish Ms. Miers the best, and also I am hoping and praying the White House gets the next pick right. Perhaps I will have more later on this whole ordeal. I feel badly for Ms. Miers, but frankly she shouldn't have been in the situation she was in. Mostly though, I am proud to have stood with many conservatives in asking President Bush to stand by his campaign promise.

And it is only fair that the WH and Miers get credit for righting this today. Plus, it looks like perfect political timing (in advance of any indictments coming from Fitzgerald). So maybe ... just maybe ... the WH is back in the game. They have my applause.

A home run ... Which the Astros could have used last night. A disappointing ending to an incredible run, and further a loss that ended my bid to be in the seats tonight for Game 5. But ... it was a great ride. And I am proud of Brandon Bakke, the kid from Galveston, who pitched the game of his life in the game of his life.

Wednesday, October 26, 2005

If, for some reason, you haven't come to the conclusion that the Miers nomination is an unmitigated disaster ...

Check this out.

Then take two aspirin and call me in the a.m.

He feels our pain

Jim Caple must be a Houstonian. How else can you explain his ability to perfectly capture the pain of George Jetson Dog fans? Check out this poignant sample:
Houston waits 43 years for a World Series game and this is what the fans get? They endure four decades of painful seasons, heart-stopping playoff losses and some of the ugliest uniforms ever worn -- and this is their reward? They enter the ballpark for the first World Series game ever played in Texas, wearing all manner of retro-jerseys, killer bee costumes and 10-gallon hats with expectations so high that only NASA could measure them -- and this is the payoff? A Series record five-hour, 41-minute, 14-inning, babysitter budget-busting game in which Houston blew a 4-0 lead with its 20-game winner on the mound, stranded 15 runners, walked 12 times, gassed the pitching staff ... and lost 7-5 to the White Sox on a two-out home run by a former Astro to slide to the brink of elimination?
Exactly.

Monday, October 24, 2005

Good Morning to all of you in the Internets

Just a couple of quick comments this a.m.

First, speaking of the internets, I remember when Pres. Bush told Nickie Goomba that he was "king of the internets". Well, it is true. More evidence here.

To shore up flagging support for the Miers nomination, the WH has apparently dug deep in the press relations pool to move this baby forward. (h/t confirmthem.com).

And shifting gears a bit ... to the Political Prosecutions Division ... Check this out. In a hearing on a motion to recuse the trial judge in the case last week, Delay's lawyer Dick DeGuerin told Judge Bob Perkins, "But I noticed yesterday that MoveOn .Org, to which you have contributed, was selling T-shirts with Mr. DeLay's mug shot on it to raise money."

The judge, however, sees no problem with his affiliation with Moveon.org, noting that the last time he gave money to them (way back in Fall 2004) they were mainly campaigning for Kerry.

Let me ask you a simple question, though: Do you think it looks bad for a judge to be sitting on a case if it at least appears he may be rooting for one side or the other? Do you think it is unreasonable to question Judge Perkins' impartiality here?

See the Judicial Canons of Ethics for yourself. Note the following, at Canon 3(c)(1):

A judge shall disqualify himself or herself in a proceeding in which the judge's impartiality might reasonably be questioned, including but not limited to instances in which:

(a) the judge has a personal bias or prejudice concerning a party ...

Only a lawyer in a robe could believe that he could be a Moveon.orgite and not have a bias against Tom Delay in such a politically-charged case. Here's hoping the the judge hearing the recusal motion gets it right and removes Judge Perkins.

Memo to Judge Perkins: If you can't see how there is at least an appearance of partiality by you in this case, then you are probably not impartial.

Update: News reports indicate that President Bush has nominated his long-trusted adviser on hanging sliders, Brad Lidge, to be the next Fed. Chairman. Democrats are suspicious that the President may have other motives. Okay, a little (I said little) mirth is in order, to assuage the pain of the weekend. I feel for Brad Lidge, too. And I think he'll get it going at Minute Maid. Stay tuned. The Astros have had plenty of cemetery dirt thrown on 'em before.

Friday, October 21, 2005

Before I go ...



The Evil that is a Political Prosecution

The above photo is Tom Delay's mug shot. I love Delay. Uh, Demos, about that "Mug Shot Ad Campaign" ... on to Plan "B".

Delay has an interesting strategy: Taking on political adversaries head on and winning. Thus, he faces his current political prosecution. He will beat the rap, though. Know why? There's no "rap" to beat, as his "crime" is understood only in the minds of McCainite zealots and/or the most partisan of partisans. I mean, what did he do? He reversed what the Demos had been doing in Texas for 100 years and help land additional Republican congressional seats. Oh?

Meanwhile, in Washington, the Bush Administration awaits word of whether indictments will be issued against Karl Rove and Scooter Libby in yet another political "crime". But ... I thought if we made nice with the Left that they would make nice and not try to destroy us? Well, Virginia, there is a Hard Left, and they will never forgive Pres. Bush for not being one of them and daring to successfully use military force against the enemies of civilization.

All of you Demos/Hard Lefties that are cheering these political prosecutions might take a deep breath and ask if you really think a free society can afford to go this way. The guy in the over-size crib in the Baghdad courtroom used to go after political opponents by utilizing the "scales of justice".

This is where such deplorable tactics ultimately take us.

Free societies don't criminalize political opposition. For long, that is.

This is why you need judges committed to an consistent application of the governing law. This is why a judge's commitment to a faithful interpretation of what the text says is more important than a judge's predilections.

And speaking of judges ...

The Miers Nomination Continues to Flounder

Recall that this brouhaha was supposed to fade after a couple of days as conservatives "got in line". Some one forgot to read the memo: Conservatives are not Demo-like, Bill Clinton-worshipping shills. They could have asked me, but ...

The hits just keep coming. If you haven't made it over there yet, check out confirmthem.com. Today's Wall Street Journal calls the pick "a political blunder of the first order". Charles Krauthammer continues to, well, hammer. The Godfather has weighed in with another devastating column. The Shadow Bush Guru Dick Morris is also piling on. More is on the way.

The key here that is lost on Miers proponents is that this is not about the strategy or style of the two camps. This pick stinks now, and it will continue to stink. When you have a bad argument, there are just so many ways to dress it up. It's hard to fool a large number of people over an extended period of time. It is particularly hard to fool smart, committed conservatives. The longer this goes, the worse it will get for the Miers camp.

Hugh Hewitt, the QB of the Miers team, is desperate and continues to fire Hail Marys into the end zone. In this post, he attacks Judge Bork and incredibly again asserts that the Miers opposition (for those not in the "know", the BWAE is the "Bos-Wash Axis of Elitism", and conservative evangelicals like me are apparently part of it) has anything at all to do with anti-evangelicalism. I think Hugh misses Judge Bork's point: Miers' sentiments about abortion are not the issue. The issue is how she will rule as a judge, and we have no idea on the only issue that really matters with a Supreme Court justice -- her constitutional jurisprudence.

This central point seems lost on the Miers pom-pom wavers: WE HAVE BEEN TOLD SUCH THINGS ABOUT JUDGES BEFORE, I.E., THEY ARE PRO-LIFE AND THESE BELIEFS STEM FROM STRONGLY-HELD RELIGIOUS BELIEFS. TRY THIS ON SOME ONE ELSE.

We need to know how they view the Constitution, not what their personal preferences are. Show us the money, i.e., the judicial philosophy in action, before a SC appointment was contemplated. Pardon me, but doesn't a conservative judge promise to put aside his or her personal preferences to faithfully rule on the case before him, any way? Indeed, we want to see for ourselves and know that we are getting a true judicial conservative on the bench, some one who will be as faithful to the Constitution in 20 years as Scalia and Thomas are today.

Hugh further seems bothered that Judge Bork noticed that Pres. Bush's record has been a disappointment to many conservatives. If Hugh can not acknowledge this point, then his weak throws will continue to spiral/wobble downward ... out of control and with no available receiver to snatch victory from the jaws of defeat.

Party matters, Hugh, but it's not the only matter. I mean, if it were the only matter, then all the Senate RINO's would certainly play ball and vote for a real judicial conservative. Right? Well, liberal and conservative matter, too.

Finally, you know it is getting bad for the Miers camp, when she has started to blog to promote her nomination. If you haven't seen it, check out Miers' blog. It's actually pretty good.

See you early next week.

Thursday, October 20, 2005

So ... what's the answer to Albert Pujols' crushing Game 5 HR?


This guy. He's a 5' 11", 175 lb. ball of fire from Weir, Mississippi. Meet the NLCS MVP and the Cardinals' worst nightmare.

Long before 28-year-old Roy Oswalt was born, many Houston fans were spending their Octobers watching the heavyweights of baseball in the World Series. No more. Chicago, here we come.

As my sons started looking ahead to the World Series in the ninth inning last night, I chastized them again for their youthful exuberance. Monday night's crushing loss was just the latest in a long line of disappointing Astros' playoff foibles. Then, to my horror, Fox put up "Astros @ Chicago" for World Series Game 1, before the last out was recorded. I chastized Fox accordingly, and then Mark Grudzilanek got a solid single to left. More nerves. Then, the majestic routine fly ball to right field was snared by Jason Lane, and the Cutter family (the males at least) let the jubilation go. Oh, boy. No dogpile yet,though. We are saving that for the World Series.

My immediate comment in the aftermath: "I still can't believe the President nominated Harriet Miers." No really, here is what I said: "If you live long enough, you'll see everything."

I then started going over my Astros memories ... I remember my first game at the Astrodome, which was way ahead of its time in the 1960s. I remember a short power hitter, Jimmy Wynn, the "Toy Cannon". I remember Enos Cabell, Craig Reynolds, and the first left-side of the infield that I could remember cheering for: Roger Metzger and Doug "the Rooster" Rader. Tommy Helms and Lee May rounded out that infield. But they never made the playoffs. That was for other teams.

My first "Astro Buddy" was a skinny kid pitcher named Larry Dierker, still the team's all-time leader in wins. I still remember when he threw his no-hitter. He was a workhorse, and I cheered when he was hired as manager. But I like Phil Garner just fine, too. The guy who hired them both, Drayton McLane, is just one of those optimistic guys who wears on you initially, but then you see that he really means it. He has said "champion" so many times around here that Houstonians just roll their eyes. They're not rolling eyes any more.

I remember summer nights with the radio and the unflappable Gene Elston. And there was the late and great, Loel "he breezed him one more time" Passe. Gene was so cool, but I remember one meaningless game in the dog days where the Astros scored 6 runs with two outs in the bottom of the ninth to beat the Expos, 6-5. Gene was so excited; he was just screaming. I was, too.

In 1980, they scored 7 runs with two outs in the ninth in Montreal to beat the Expos again. What a hoot. Almost as big a hoot as listening to Milo "I am the play-by-play guy, but I bet you can't guess the score" Hamilton. My boys and I have gotten many kicks through the years as Milo continues to pile up the follies and wear out his supply of cliches. He is especially funny when griping out the Astros after a loss. Or when he forgets how many outs there are. Or when he forgets that we can't see what's happening, so we need some one who can to tell us. But I digress ...

There I was as a kid on opening day, watching in a packed Astrodome as a young pitcher named Mark Lemongello (yes, Lemongello) baffled the Dodgers and the Astros won, 4-3, in 10 innings. Later, I would take my boys to the same Astrodome to teach them the game, and teach them to cheer for our team -- the Astros. One Father's Day, we took my dad to the Dome and he couldn't believe the boys' knowledge and interest in the game. We Cutters are Astros' fans.

All those years ... all those players. The sweet swing of Terry Puhl, the multi-talented Cesar Cedeno, the clutch Bob "the Bull" Watson, Don Wilson, Cliff Johnson, Joe Morgan, Jose Cruz, Denny Walling, Jesus Alou, Dickie Thon, Moises Alou, Charlie "all the NY fans cuss, are drunk, and have black teeth, and that's just the women" Kerfeld, Dave Smith, Joe Sambito, Joe Niekro, Bob Knepper, Billy Doran, Ken Caminiti, Mike Hampton, Alan Ashby, Darryl Kile ... There was some guy from Alvin who pitched here for a while, yeah, Nolan Ryan.

I remember seeing a young kid who played catcher. Man, he could run for a catcher. I thought ... "this kid can play". His name: Biggio. And I recall a trade of one of my favorite relief pitchers, Larry Anderson, for a pretty good young hitter, Jeff Bagwell.

Man, you've gotta be happy for Biggio and Bagwell.

One night I saw Bagwell hit a wayward slider from Byun Yung Kim seemingly all the way to Galveston to win a ballgame. I also saw Baggy in the strike-shortened 1994 season, and he was every bit as good as any hitter around today ... including Pujols. He won the league MVP then and hit something like .368 with 37 homers in a shortened season. Incredible.

I remember surprising my young bride by springing for tickets in 1986 and catching a plane to Houston to watch the Astros take on the Mets. In that game, the Astros blew a 3-run lead in the ninth inning when Darryl Strawberry homered. But my all-time favorite Astro, Craig Reynolds, hit a game winning homer in the bottom of the ninth. From there, the Astros went on their incredible run to the NLCS against the Mets. They got there with the incredible division-clinching no-hitter by Mike Scott.

I remember the depressing loss in the 1980 LCS. Tal Smith, the incredible GM then, is still the team's president. I felt the exhiliration of Billy Hatcher's game-tying bomb in the 14th inning of the 1986 LCS, and the sting of Kevin Bass's strikeout in the 16th to end it.

The LCS losses in 1980 and 1986 were both to eventual World Series Champions.

I remember when they drafted some hefty outfielder from Rice. But that kid Berkman could hit.

I was there when Randy Johnson threw his first game as an Astro in 1998 ... a complete game shutout over the Phillies. That 1998 team may have been the best Astro team ever, with a playoff rotation of Johnson, Hampton, and Lima ... and a flame-throwing closer named Wagner. There have always been great pitchers in an Astro uniform.

I have seen playoff collapses year after year ... I was there in 1999, the last season in the Astrodome, when Walt Weiss made "the play" on a bases-loaded shot by Tony Eusebio; 52,000 thousand people gasped, and the Astros collapsed. The Braves won the game and the series on the next day at the Dome. I was in the stands then for the last game ever played at the Dome. I've been in the stands twice when the Braves eliminate the Astros in the playoffs.

My family and I were there on Opening Day at Enron Field in 2000. Man, what a bad season that was. The pitchers were shell-shocked and psyched out by the new ballpark, as opposing hitters salivated. The last few years, my boys and I have had some great days and nights at the stadium that has become Minute Maid Park. They win everytime we go. We're going to Game 5 of the WS. The Rocket will be on the mound.

I remember when the Astros signed Andy Pettitte in '03, and then later Andy coaxed his buddy Roger to join him. Then, we started dreaming again around here. It was just too much to resist. And the Rocket lifted the team, almost immediately.

Indeed, last year, even with Pettitte hurt, the Astros traded for Carlos Beltran and went all the way to Game 7 of the NLCS. I remember watching as Jeff Kent hit his walk-off homer in Game 5. We dared to believe. But it was all for naught, as the Cards won it in 7.

Earlier this season, my sons' baseball team went to watch the Astros on May 31. They played pretty well and beat the Reds, 4-3, behind Galveston's Brandon Bakke on that warm night. That win made them 19-32. The very next day, however, the Houston Chronicle pronounced them dead, saying that the focus should be on next year. The team was laden with too many young players, too many old players, indeed too many question marks. Bagwell was hurt.

They were dead alright. Like Lazarus.

Later this season, we also saw them beat the Rockies. And ... oh, yeah, we were there on the last day of the season when they clinched. Some guy named Oswalt was on the mound. Bedlam.

But when the incomparable Albert Pujols hit his devastating moon shot on Monday night, all the pain of the past came back in an instant. The Astros were given up for dead ... again.

But this team had come too far to die. It had the best "big 3" starting rotation in baseball ... Oswalt, Pettitte, and the Rocket. And they had the best closer in baseball, Brad Lidge -- a great pitcher and a better young man. Morgan Ensberg had become an All-Star and Lance Berkman recovered from knee surgery to continue to pick up clutch hits down the stretch. Mike Lamb stepped up big. Jason Lane had a huge, breakthrough year. Biggio's bat looked quicker than ever. And the role players ... Everett, Ausmus, Wheeler, Burke, Astacio, Qualls, Gallo, Bruntlett, Rodriguez, Springer, Vizcaino, Palmeiro, Bakke, Taveras, and (this year) Bagwell ... filled their roles.

But the bottom line was: The team's stellar pitching staff just wouldn't let this team lose. As a result, they had the best record in baseball from mid-May through the end of the season. And they needed every single win just to make the playoffs, as they edged the Phillies by a solitary game for the Wild Card.

The other night, after the Astros were given up "for dead" again, I commented to my boys that if the Astros got by the Cards, the adversity in Game 5 could actually make it more likely that they would win the World Series.

It seems possible now. Because if you live long enough ...

Tuesday, October 18, 2005

Is it just me ...


... or is this in fact Diane Feinstein's long lost brother, George "McFly" Feinstein?

Tell the truth now. When Sen. Feinstein says, "I am a pro-choice Democrat", don't you hear, "Get your damn hands off of her [body], Biff?"

Monday, October 17, 2005

DC Rules: Hugh Hewitt Not Guilty of Fraud, but Guilty of Incoherence and Inconsistency

A brief disclaimer is in order as I ask you to strap yourself in for a long ride. If you care about the Miers nomination to the SC, though, I think you'll find it worthwhile. You should know that I like and respect Hugh Hewitt. Nothing herein is meant as a personal attack. But Hugh has really got it wrong on the Miers nomination, in my judgment. I think it is important to expose his faulty logic and reasoning. You can decide for yourself and act accordingly.

Over the weekend, a diarist at RedState posted the following "smoking gun" regarding the arguments made by Hugh Hewitt before Harriet Miers was nominated. And here's Hugh's response to the RedState post.

In addition to arguing that the nominee should be closer to 50 than 60, Hugh said:

You see, I've tried to explain to people about Judge Janice Rogers Brown, that she has not been a federal judge. And my concern over her and Priscilla Owen is, that federal judges just do different things than state judges. And I want to see a little bit from them, before you run as a conservative. I don't want to run blind. And I think she really hasn't done, for example, federalism issues, hasn't done federal pre-emption, hasn't interpreted the free exercise of the establishment clause, though there are Constitutional counterparts in California. That's my concern .... I just don't think they're reliable enough when it comes to understanding how they'll handle federal issues.
I mean, but couldn't we just "trust the President" before 10/3 in the same way we could post-10/3, Hugh? Maybe not.

And then Hugh argued the following:

And brilliance matters, even if you're a dissent, because you've got to mold the law schools. You've got to mold the professions. You've got to look ahead. I think Bush needs to go for someone about whom there is no question of intellectual...the capacity for intellectual greatness.
If I were a Miers supporter, perhaps I would argue that Hugh's position was "elitist". But no, it was just pre-10/3/05. And I think he was telling the truth then. And he was right. And after perusing Miers vacuous ruminations in the Texas Bar Journal, let there be no more pretending that Miers is some brilliant scholar.

Suffice it to say, we haven't heard such arguments (about the need for brilliance and/or a track record) from Hugh since October 3. Yet, we have heard plenty of similar arguments from the critics of the Miers nomination -- people such as myself -- since 10/3. As is often true in situations such as these, the charge (of fraud) is too steep ... thus, giving Hugh an out. But his defense is also weak, especially to the lesser included charge of an inconsistent, incoherent, and weak defense of the Miers' nomination. So, "not guilty" to the charge of fraud, but to the charge of inexplicably incoherent? Absolutely, positively 100%, O.J. Simpson-style, guilty.

Dissecting Hugh's Defense

Not surprisingly, Hugh response concludes with, and ultimately rests upon the "Trust me" theme: "But the field is large, many forces are at work on it only a few of which I glimpse, and President Bush has not broke his word on a promise to his party yet."

A few weeks ago, I would have said the same. Indeed, most of the conservative angst at Pres. Bush is not over the fact that he has broken promises, but over the fact that that he has not governed as a conservative. For example, understandable conservative concern over immigration is not as a result of Pres. Bush breaking a promise. He has always been strangely silent about the growing immigration problem. Furthermore, he promised he would pass medicare reform that included prescription drug coverage. I wasn't excited about this promise during the campaign, but you can't say he didn't keep his word on this score. Recall, too, that he said he would govern as a "compassionate conservative", but he never defined the term. Others were left to speculate what this might mean.

However, fast forward to this dispute: The President clearly promised (albeit without using those precise words) to nominate judges in the mold of Scalia and Thomas. So, conservatives have rightly asked if Harriet Miers fits this description. Meanwhile, we have been troubled by statements such as those by Texas Sen. John Cornyn: "She is no Scalia and Thomas." Well, maybe Sen. Cornyn is wrong or means something other than the plain meaning of the words themselves (an ironic twist in this debate, for sure). Maybe I should just be inclined to give the President the benefit of the doubt. Maybe I would ...

But George Will's recent column on this controversy pointed out something to me that I had frankly forgotten. In recent years, Will has worn thin as he has seemed all-too-ready to try his "independent" wings. But I read the column and was persuaded by it. Why? Because facts are stubborn things. Here is the passage that really struck me:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."
Again, think what you may of Will, but facts are facts.

I knew Pres. Bush opposed the disasterous McCain Campaign Finance "Reform" -- a measure that has now spread its perniciousness tentacles even into the blogosphere -- but I thought the President signed it to avert a showdown with McCain and to preserve precious "political capital". Well, it turns out the President did just that, but he also broke a promise in the process.
And he broke a promise at the core of the Miers debate -- Can we trust the President to be faithful to a conservative understanding of the Constitution? My answer now is: Perhaps we can, but I want to be able to verify for myself whether Miers is in fact a conservative in the mold of Scalia or Thomas. To date, there is no evidence to support this assertion. In fact, the evidence is that Miers is an indecisive woman who has changed her views in various roles and stages of her life. She has espoused liberal opinions on multiple occasions and in multiple decades, but the President brazenly and almost humorously says, "I know she'll be the same in 20 years." I won't chronicle all of Miers' zigging and zagging here, but there is considerable doubt that she is in fact a fulfillment of Pres. Bush's campaign commitment.

If during the campaing the President had said he would nominate people like Harriet Miers to the SC, how many people would not have voted for him?

As for Hugh, the problem with his position is not that he has now -- his previous comments notwithstanding -- decided for political reasons to suport the nomination. The problem is what he and the WH's other supporters have said about those of us who disagree with the very same arguments that Hugh made pre-10/3.

To those who have argued about Miers that "brilliance matters" post-10/3, Hugh and the WH have said that we are "elitist", indeed part of the dreaded "Bos-Wash axis of elitism." That is a nice ad hominem swipe aimed to knock us Miers opponents all the way to the middle of a Red State wipeout. But, come on, Hugh. I live in the capitol of Red State America -- Texas.

Recall, too, that Hugh has also intimated that there is a "hint" of anti-evangelicalism in the air, as well. And this "anti-evagelicalism" stems from ... you guessed it ... elitism. And Hugh has warned of an "evangelical backlash" against the "elites" if Miers is not confirmed. Recently, Hugh said, "To vote against Miers because the Bos-Wash Axis of Elitism is against her is not the way to gain Evangelical favor. The opposite, in fact, is true." Here is another sample: "I don't think the folks who are predicting "no fallout" from the defeat of Miers are aware of the anti-Evangelical perception that is growing." So, the not-so-subtle point Hugh has been making is that the conservative "elites" don't like Miers because they don't like her religion. This sounds like arguments that liberals make about conservatives, does it not?

In sum, the common theme in Hugh's arguments has been that opponents of the Miers nomination have had improper motives - elitism, anti-evangelicalism, etc. He has pulled no punches, stating the Miers opponents were engaging in the "big sulk", were behaving like "Kos Kids", were "D.C. druids", and when questioning the resume of Harriet Miers were engaging in a course of conduct of no utility and "zero honor".

If I were Andy Card, perhaps I'd call such arguments "cynical" or worse. But I'm not Andy Card. I just a conservative Christian from Texas. So, I will simply say that Hugh's just wrong, and he's grasping at straws. And dare I say it? Yes, he's calling names because his argument is so very weak.

The fact is that conservatives skeptical of the Miers pick are simply making the case for "brilliance" and for a conservative track record. Herein lies Hugh's problem: It is fine for him to argue that his position changed. But it is inconsistent or incoherent to impute bad motives to those making the same arguments he has recently made.

To top all of this off, Hugh's credibility on the Miers nomination was forever tarnished by his gushing statement on October 3 that Miers was a "solid, B+ pick". Recalling from the grading scale, if "A" is excellent, and "B" is good, that would make Hugh the only person in America who believes this is a very good pick (except for Laura "Those Who Disagree are Possibly Sexists" Bush). Yet, I think he knows this is not the case. And I don't think he's misrepresenting here, either. At least I don't want to believe that. I just think that Hugh is so inclined to give the Republicans a pass that he just has a hard time seeing the truth. Hugh takes the sympathetic argument -- my country, right or wrong -- and mutates it to "my party, right or wrong." I am unwilling to go this far.

The truth is that, through the rosiest of rose-colored glasses, this was a "C-" pick. Hugh should have said so, and in the process would not have lost so much credibility in this debate. I will be charitable and give the pick a "D". After all, it has only shattered conservative confidence in the President and emboldened his opponents, while potentially taking a 30-year opportunity to reshape the Court and instead turning it into a colossal disappointment. Even if Miers turns out great (again, I very much doubt this) the path to her appointment to the bench will likely be littered with political casualties -- Republican and/or conservative ones.

Hugh argues the opposite, but my thesis here is demonstrably true. The battle lines are drawn, and now ... if the nomination goes to a vote ... Republican senators must vote and risk alienating much of their conservative base, no matter how they vote. It is a lose-lose situation, without enough time before the '06 elections to see how Miers will really pan out.

The Texas/Evangelical Connection

To bolster his "trust me" argument, Hugh cites an impressive list of supporters of the nomination. I know and respect many of these people, especially Marvin Olasky, Lino Graglia, and Judge Ken Starr. A couple of observations are in order here, though. First, a careful reading of the opinions of these supporters reveals tepid endorsements in virtually every case. In fact, compared to similar endorsements of the Roberts nomination, the Miers endorsements are strikingly weak. Second, nearly all of Miers' supporters are Texans and/or evangelicals. Like me. So, what's my problem, you ask? Well, for one thing, I have the benefit of operating in relative anonymity, known only to a few loyal readers of this blog.

Texas lawyers are particularly under the gun, like poor Beldar. Beldar is identifiable, and let this Texas lawyer (yes, I am "out" because it is necessary to make this important point) tell you a cold, hard truth: There will be almost certainly be hell to pay for Texans, especially lawyers, who do not toe the line on this nomination. Beldar may deny this; in fact, I would expect him to make an impassioned -- albeit long-winded, as always -- defense of his position. To illustrate this point, there are a couple of more Texas supreme court justices making the trek to Washington today to make the Miers case -- a Democrat and a moderate Republican, by the way. Whoo ... I feel better.

The foregoing explains why you can expect more toeing the line by poor Sen. Cornyn. Sen. Hutcheson will do the same, as well. I understand. Speaking out would essentially be political suicide, and neither made promises to oppose the President's nominees during the campaign. Heck, they thought the President's nominees would be like Scalia or Thomas.

So, as for the Texan and evangelical supporters, I get it. They are making judgments based on people they know, and that is fine to a point. As for Judge Starr, recall that he also supported and vouched for the pro-life bona fides of Sandra Day O'Connor. We all make mistakes.

I may be wrong here, and I sincerely hope I am.

As for the evangelical and pro-life take on this nomination, I am not alone in my opposition about this nominee. Hardly. Pro-life groups such as Operation Rescue and National Pro-Life Action Council have come out in opposition to this nominee. Furthermore, in spite of notable evangelical support, many evangelical Christians remain unconvinced. As I noted in my previous post, only 43% of evangelicals support this nomination, according to the Pew Research Center. That figure makes the weak conservative support look strong by comparison. It is more than a bit ironic, I think, that those famous evangelical sexists, Concerned Women for America, have made perhaps the best case best case for skepticism on the Miers nomination to date. Take a look.

Maybe Hugh was right that there will be an evangelical uprising over this nomination -- if Miers is confirmed, that is.

The Verdict

In reaching my conclusion, I found this this jewel from Hugh, written on October 2, the eve of the Miers' nomination:
In the end, I am hoping that President Bush makes a choice that he can defend to the country as a simple merit pick, free of political calculation or constituency bolstering. Very few, if any, serious ConLaw scholars would debate the intellectual qualifications of either man [Luttig or McConnell], and their colleagues from the Reagan Executive Branch, the law school community or the bench will sing their praises. Either will be opposed as too conservative, which is simply outrageous partisanship. So there will be a fight, and the GOP has the votes to win.

There has never been a filibuster of a SCOTUS nominee over the perception of how he or she would vote. If the Senate Democrats mount such an effort, the country will get a very clear lesson in how unhinged that party's leadership has become from the country's political history and mainstream, and the Senate will have to vote on whether the filibuster can be applied to SCOTUS nominees. The Republicans will win that debate and that vote.

When the battle is over, and five and ten and twenty and perhaps even thirty years later, George W. Bush will be able to confidently assess his first two nominees to the SCOTUS and know that he did exactly the right thing for the right reasons.

The Supreme Court deserves the best jurists available to it. If the Constitution matters, then the nominees to join the court that interprets the Constitution should be those judges with the best intellectual talent, calm temperment and governmental experience.
Wow. Couldn't have said it better myself.

The only difference between Hugh and the legion of furious conservatives is that we are still making the arguments Hugh was making on 10/2. Hugh changed course on 10/3, as is his right. I am sure he has reasons for trusting the President's judgment. As I have said, people that I know and respect are doing the same.

But aren't the Miers opponents entitled to the same deference? Indeed, it is wrong to castigate those of us who want the same for our Supreme Court today that we wanted before the Miers' pick.

Friday, October 14, 2005

If you think conservatives are outraged over the Miers nomination ...

Take a look at evangelicals. This fascinating Pew Research poll shows 54% conservative Republicans in favor of the Miers nomination, while only 43% of evangelicals support the nomination. Another 41% of evangelicals have no opinion and the rest are like me ... opposed.

Now, this is interesting, is it not? I was lamenting over at confirmthem.com the absence of a press in this country. So, I guess it's up to bloggers like me to analyze this (that is, until Sen. McCain shuts us down ... and I should add with the help of the signature of the WH on the affront to free speech known as "Campaign Finance Reform"). But I digress ...

So, what gives? Well, it is pretty simple, but frankly it helps to be one of "them" to understand. Recall Clarence Thomas? He was overwhelmingly disapproved of by the black community. Why would only the second black man to serve on the SC be viewed so unfavorably by the black community? Simple. He is a conservative.

As for Miers, the same analysis applies. Most evangelicals are conservatives. Miers may or may not be a conservative, but she has no demonstrably conservative judicial philosophy. Additionally, most evangelicals don't support special favors or quotas. So, they don't approve of a nomination just because "one of them" was nominated.

Add on top of this the fact that a number of prominent evangelicals have spoken in favor of Miers and the poll numbers are even more striking.

Why is this not news? Well, the MSM knows less about evangelical Christians than say, I know about curling. But I will tell you what ... it is fun to watch, and those Minnesota girls can move that broom likkety-split. But seriously, the MSM is too busy doing self-congratulatory analysis pieces on how the Republicans are cracking up and how many Senate seats will be gained by Demos in '06. They are missing the boat ... again.

And prominent evangelical bloggers such as Hugh Hewitt are too busy selling the WH line: "Trust me. Be quiet. Wait. Be loyal now. Don't you know the sky will fall, the country will be destroyed, and evangelicals will revolt if she is rejected?" This is laughable, and it was made more so by Pat "Hit Man" Robertson joining in the chorus. Pat apparently got the WH memo on the subject. Just yesterday, Pat threatened all out warfare (another "hit"?) on any Republican senator who dared vote against Miers.

"THE (unbelieving) MAN IS KEEPING THE WOMAN DOWN."

Oh, my. I just have to laugh. You know, I know evangelicals. I know me. The truth is that most of my Christian friends are just scratching their heads over this pick and saying things to me like, "Huh?" or "What in the world is he thinking?"

Even evangelical supporters of Miers such as Dr. James Dobson are tepid and wary. The news just keeps dripping out, and it is not good. Further, it appears that the WH told Dobson that other candidates had backed out, and thus Miers was offered the job (i.e., "please accept loyal Harriet; she was the best we could get after all those meanies bailed on us"). Meanwhile, the WH denies this. So, Dobson is fibbing?

If you want a slice of informed, incisive analysis from an evangelical perspective about the Miers nomination, check out Concerned Women for America's position statement on the Miers nomination. It's the best-written analysis of the nomination I've seen ... anywhere. You go, girls. Like me, they are a lovely bunch of sexists.

CWA is still officially undecided, but they haven't read the "Miers' papers" yet (from yesterday's NYT), and this statement was issued before it was learned that Miers waxed eloquent about the perniciousness of the "overly-political" Federalist Society (put your hands over your hearts when you read that name, dear reader).

As for me, I've got my smile back on ... There's a deep satisfaction in standing up for what is right, because no matter the ultimate outcome you've already won.

P.S. Say a prayer for the Iraqis and our troops this weekend. All people of goodwill everywhere should be pulling for a successful election and for success in Iraq.

Thursday, October 13, 2005

Unbelievable ...

I have tried/wanted to keep an open mind after initial shock and disapointment over the Miers nomination. The confidence of my former professors Marvin Olasky and Lino Graglia gave me some pause. Meanwhile, I have withstood the inane, vapid arguments in favor of the nomination (don't worry, just trust ... it'll be okay) combined with and attacks on the conservative base by certain Miers supporters.

Our ol' buddy Hugh Hewitt supposedly comforts conservatives by saying that Miers will be like Potter "I know it when I see it" Stewart. Beam me up. This is too much to take. Is this real, or is is "Harriet Potter"?

Does any one have the transcript where Pres. Bush promised nominees like ... Potter Stewart? What?!

No more. I am opposed. No turning back.

Miers' defenders have tried to explain her apparent disdain for my beloved Federalist Society (I let my membership lapse long ago, but I am renewing now), which to me has been a huge red flag. Well, this a.m., Drudge has the scoop.

I guess the court reporter is lying ... or a sexist ... or an elitist ... or disloyal ... or ... never mind.

Harriet Miers, it is time for you to do the loyal and right thing. Please withdraw.

Wednesday, October 12, 2005

DC's Law of Supreme Court Intertia

As I was telling my buddy and convinced Miers believer Don Surber, you gotta understand the law of Supreme Court Intertia. It goes like this:
Justices at rest, whether they be liberal or conservative, tend to stay at rest. Justices in motion ... tend to drift left.
Hence, without evidence of "mooring" such as to define a justice's jurisprudential location, we must always assume that justices will drift. And when the inevitable storm surge of pressure comes, the unmoored will surely drift. And they always drift left.

A friend like Nathan

Speaking out about/against/skeptically about the Miers nomination is for me somewhat like Nathan confronting David.

So, I am prophet? Hardly. My point is: I remain a friend and supporter of the President. But he made a mistake here and a biggee -- even if Harriet Miers is a Thomas or Scalia (which I still doubt).

Many of the President's most ardent supporters -- that would be conservatives like me -- are up in arms and fit to be tied. Now, we read that Republican staff lawyers on the Senate Judiciary Committee are participating in the revolt. The First Lady clumsily and, yes, outrageously deals the "possibly sexism" card. Miers supporters threaten political Armageddon if we don't toe the line; Miers opponents threaten Armageddon, as well.

Sounds like if the confrontation continues, it's going to be Armageddon either way, no? So, this is how we get the big "fight" over judges ... not with the Democrats, but with conservatives? Oh, the irony.

Indeed, the mother of all confirmation battles, a battle that will sap the President of whatever fading political capital he may have left, looms. And no matter the results, all will be left feeling like losers.

So, what to do? How can Armageddon be avoided in a way that preserves the integrity of all concerned?

I have a suggestion. Caveat: Please ignore the following suggestion, unless you believe Harriet Miers is the only confirmable person in America who would fulfill the President's promise to nominate justices in the mold of Scalia or Thomas. Oh, wait ... I forgot. Tex. Sen. John Cornyn, who knows her well, says "she is no Scalia or Thomas". Scratch that. Okay, here's my suggestion to avert Republican Armageddon:

Maybe it's time for Harriet Miers to be a true friend to the President and tell him the hard truth: This pick is an honor and I thank you. But it's not helping your agenda, our party, or the country. I withdraw.

Tuesday, October 11, 2005

The Most Compelling Case for Miers Yet: The Evangelical and the Atheist Come Together

Came across a column and a post tonight that are, in my view, worthy of your attention.

First, I have been watching carefully to see the take on the Miers nomination by my "Hero Professor" and fellow evangelical, Dr. Marvin Olasky of the University of Texas. I took Dr. Olasky's journalism history class at Texas, and I have been a fan of his ever since. This brilliant, yet humble and gracious man is a former Marxist and Boston Globe reporter (he says he fit right in) turned evangelical Christian. He is also the author of "Compassionate Conservatism", yes, the book that inspired the President's campaign theme.

Currently editor-in-chief of World Magazine, he still works as a token conservative journalism professor at UT.

He is, if not the most brilliant man I have ever known, certainly right at the top. It is clear that Ms. Miers has not met him. But I digress ...

At any rate, Dr. O makes the most persuasive case for the confirmation of Harriet Miers to date. Read it all. Here is the passage that really struck me for its insight and connecting of dots:

... Columnist Michelle Malkin argues well that "a good heart does not a great Supreme Court justice make." No, but it might make a person remain an originalist.

Heart: In so many ways, this appointment is classic Bush. Nearly six years ago, when asked in an early debate among Republican presidential candidates to name his favorite philosopher, W. famously said, "Christ, because he changed my heart." The pooh-poohing of his answer then (favorite philosopher -- the question was about mind, not heart) anticipated the current debate among conservatives: suffering servant? Why not intellectual leader?

It's George W. Bush's analysis that "heart" is crucial, since a good mind by itself also does not a great justice make. We may end up having been bamboozled by this nominee, in which case the Republican Party will pay a heavy price. But give Bush credit for going beyond the assumption that the person who would be the best constitutional law professor makes the best nominee. He has not only nominated a justice, but implicitly called for a paradigm shift in conservative thinking.
What Dr. O is saying is that he has concluded that the President has concluded that Harriet Miers faith will keep her faithful to an originalist approach to the Constitution. That is, her integrity (which is grounded in her faith) will keep her steady in her originalist approach to the Constitution. Okay, this I understand. And I also understand the reluctance to market this for MSM dissemination.

So then, in the interest of fairness, what do the atheists have to say? Well, it just so happens that one of my favorite atheists, UT's Constitutional Law professor Lino Graglia, was interviewed by WH Communications Director Hugh Hewitt today.

Full disclosure: Graglia is another old professor of mine, and he may be the funniest professor ever. For example, he would occasionally make fun of liberal students' hair to conclude a debate/discussion. This was not received well, except by right-minded types such as myself. The cynical conservatism of this Brooklyn native is highlighted by one of his favorite anecdotes: "Liberals wake up every morning and ask, 'What good can I do today?' Me? I just wake up and say, "Thank God my throat wasn't cut last night."

The Graglia interview with Hewitt is great, and I was shocked to see that Graglia said the following:
Nathan Hecht is very trustworthy. Nathan Hecht is probably the most conservative judge on the Texas Supreme Court, very trustworthy. He speaks very highly of Miers, who he knows, and that is a large part of my basis of belief that she'll be all right.
Yet, Graglia also does sympathize with conservatives' "Souterphobia". And he asks "the" question: "The Supreme Court is running the country. What point electing conservatives if you don't change that?"

Exactly.

So, still fuming over the mismanagement of this debacle and the assault on those of us who would dare question this nomination, I am at least heartened by the confidence in Miers I see coming from Olasky and Miers. Maybe this nomination, if it succeeds, won't be the disaster that Judge Bork fears.

So, the believer Olasky and the athiest Graglia have come together. What in the world could be next?

How about some patience with us agnostics?

Monday, October 10, 2005

A liberal understands the Republican base better than the White House

Via confirmthem.com, we learn of a liberal who understands the stakes in the Miers pick. Said liberal is Rogers Cadenhead. Now, if I had just told you the name, you could probably guess he is a liberal, but I digress ... The liberal is spot on in this instance, and here is his take:
Stealth nominees have a strategic short-term advantage that makes it difficult to keep them off the court, so it’s likely that Miers will be confirmed unless President Bush withdraws the nomination, which ranks in probability somewhere between “no chance in hell” and “never in a million years.” The president’s so stubborn that were he captain of the Titanic, he would have run the ship into a second iceberg to prove he meant to hit the first one.

There’s a long-term price for filling the Supreme Court in secrecy . . . . Conservatives have built an intellectual foundation for their interpretation of constitutional law over a quarter century, as embodied by the Federalist Society and the embrace of originalism.

Neither Bush appointment has publicly nurtured this movement during their careers. In some instances, they’ve even distanced themselves from it. When asked her most admired Supreme Court justice, Miers did not choose Justices Scalia or Thomas. When John Roberts showed up in a Federalist Society membership directory, the White House issued a quick denial, stating that he “has no recollection of being a member.”

Roger Pilon, a Cato Institute vice president and society member, was stunned to see Roberts run away from the association as if Joseph McCarthy was after him. “Are you now, or have you ever been, a member of the Federalist Society?”

If you’re a 25-year-old conservative who graduated Harvard Law first in your class and clerks for Chief Justice Roberts, do you spend the next 20 years contributing to law journals, actively participating in the Federalist Society and seeking a judgeship from which you can foster conservative jurisprudence?

Clearly, if you have supreme ambitions, the answer is no. By choosing Roberts and Miers, Bush has publicly affirmed the notion that judicial conservatives believe in an ideology that dare not speak its name. Friends of Clarence are the new Friends of Dorothy, forced to develop furtive code phrases to seek each other out — just like how President Bush namedrops Dred Scott as a double-secret shout out to anti-abortion activists.

“I couldn’t help but overhear what you said about Griswold v. Connecticut at the bar, friend. Want to take this someplace more private so we can disrespect stare decisis away from all of these living constitutionalists?”

Harriet Miers is the best thing to happen to liberals since the repeal of anti-sodomy laws. I hope she has a sister.
The liberals have spoken. They love this nomination.

Cadenhead unwittingly, though, makes a more fundamental point: The Left expects more of conservatives than the sneaking "strategery" involved in the Miers nomination. They are loathe to admit this, but they hold us to a higher standard. Yes, I did notice and thank you, Mr. Cadenhead.

Liberals expect intellectual honesty from us, and generally they get it. We in the conservative movement have never been unashamed of conservative jurisprudence. Why should we be? We are winning the debate against unprincipled judges who substitute their liberal policy preferences that would never succeed at the ballot box. We are succeeding on every front, from the court of public opinion to the halls of academia. Virtually every law school in the country talks disdainfully about how Roe v. Wade is a contradictory, result-oriented decision on a collision-course with technology and medical science.

Why is it then, that the White House is ashamed of the Federalist Society, which was co-founded by one of the justices that Pres. Bush claims to admire? Why does the White House act like nominating a conservative to the Supreme Court is the equivalent of nominating a member of the Taliban? Don't they understand that this emboldens liberals and legitimizes their arguments that mainstream conservatives are in fact out of Chuck Schumer's "mainstream"?

One possible answer: The White House is not really that conservative, after all. If you think the WH is really a conservative White House, I would like to hear the evidence. We conservative peasants outside the establishmentarians' palace are getting restless.

Perseverance. Pays. Off.

Around these parts it was an amazing sports weekend, and it was a welcome diversion from the Miers mess. In case you don't care about sports or didn't have power this weekend, all that happened around here was that the Astros rallied from 5 runs down in the 8th inning to defeat the Atlanta Bills in the greatest and longest playoff game in the history of baseball.

My venue changed througout the afternoon, but this incredible game was a constant. I listened to it, watched it, listened again, watched again, and finally listened to yet again, as Chris Burke's dramatic homer ended it in the 18th inning. Winning pitcher Roger Clemens threw in relief for only the second time in his career. Pitching on only two days rest, the Rocket was money as he threw three scoreless innings.

Now, on to the long-awaiting NLCS rematch with the Cardinals.

I don't deserve such sports satisfaction, but on Saturday the Longhorns also blasted Oklahoma, 45-12, thus ending the five-year reign of terror of the Great Satan. It really wasn't even that close, folks, and further amplifying my joy, GS himself was denying reality and making excuses afterward, claiming that a second-half interference call that nullified an OU interception "really was a turning point." Of course, the hapless Sooners were only down 24-6 at the time and didn't surpass 100 yards of offense until midway in the 4th quarter.

What am I doing to deserve such bliss? Opposing the nomination of Harriet Miers, right. Oh, yeah ... More on that in a bit.

Saturday, October 08, 2005

Newt weighs in ...

with finally some, albeit weak substantive arguments in support of the Miers' nomination.

A small respite from the platitudinous vapidity gushing from the WH at its operatives is a welcome relief, at any rate.

And Newt is pretty sharp. Remember what he said about Souter?: "Virtually every conservative who knows him trusts him and thinks he’s a competent guy.” Yikes.

The Godfather Calls for a "Hit": Bork says Miers pick "a disaster on every level".

With all due respect to Nickie Goomba, The Godfather of the conservative legal movement calls for a "hit" on Miers.

Here's Don Bork beating around the bush, as usual:

I think it’s a disaster on every level. ... [T]his is a woman who’s undoubtedly as wonderful a person as they say she is, but so far as anyone can tell she has no experience with constitutional law whatever. Now it’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. So that—I’m afraid she’s likely to be influenced by factors, such as personal sympathies and so forth, that she shouldn’t be influenced by. I don’t expect that she can be, as the president says, a great justice.

But the other level is more worrisome, in a way: it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.

Check out the whole interview of the Godfather with MSNBC's Tucker Carlson.

Clearly, he is just an elistist, or a liberal, or a sexist ... or maybe just not on the WH payroll or trying to get invited to the White House. Ain't no big deal, any way. Right, Nick?

Have I said anything about Harriet Miers lately?

It has been informative, inspiring and entertaining to participate in the raging debate at confirmthem.com. Lots of insight, information and wit ... with of course some gallows humor and irreverance mixed in. How can any feeling of reverance be associated with this disaster? (That is a rhetorical question, class.)

As a great example of the type of argument that the shills just shove aside with "Trust Me", check out this comment by "Insider":
Let’s review, shall we:

1.Her favorite Justice is “Earl… Warren…Burger”(?)
2.She “toned” down a WH Christmas message because it was “too Christian”(?!)
3.She set up a liberal lecture series at SMU.
4.She donated money to Al Gore AND the DNC.
5.She spoke out in favor of affirmative action quotas while she was at the Dallas City Council.
6. She presided over ABA meetings where official favorable ABA positions in regards to the International Crime Court and gay adoption were decided.
7. Bush named 4 persons to the Texas Supreme Court between 1994-2000, including Gonzo, while he named Miers….to the Texas Lottery Commision.
8. expressed dismay about the “federalist society types” Gonzo hed put in place at the Council’s Office (further comments unfavorable about federalist society also available at the Knight Ridder newspapers recent article).

Sounds like a “mainstream nominee”……. from the Clinton administration.

Harriet “Souter” Miers, ladies and gentlemen!
C'mon, Insider. "Trust and obey, for there's no other way ..."

Friday, October 07, 2005

As if it weren't obvious enough ...

that the Miers nomination is doomed, check out the following Washington Post story. In particular, see check out this nugget:
While generally well received, Miers has had a few awkward moments, including one during her Wednesday session with Sen. Patrick J. Leahy (Vt.), ranking Democrat on the Judiciary Committee.

In an initial chat with Miers, according to several people with knowledge of the exchange, Leahy asked her to name her favorite Supreme Court justices. Miers responded with "Warren" -- which led Leahy to ask her whether she meant former Chief Justice Earl Warren, a liberal icon, or former Chief Justice Warren Burger, a conservative who voted for Roe v. Wade. Miers said she meant Warren Burger, the sources said.
So, we can glean from this that 1) Miers likes Earl Warren; or 2) she, unlike every other lawyer in America, likes and respects Warren Burger ... no wait, he is her favorite justice of all time; and/or 3) she is on a first-name basis with "Warren"; and/or 4) she is not smart at all; and/or 5) she is liberal.

At least 2 or 3 of the foregoing not-so-good things appear to be true. However, one thing is for sure from the aforementioned exchange with Leahy: She is not for overruling Roe v. Wade.

I am so glad the President saw her heart.

And if that isn't good enough for you, check out Ned Ryan's gem of a column. Ryun is a former speechwriter and WH staffer. And he's a conservative Christian, you know one of the types that this pick is supposed to appease. Here is the money:
Another item of concern to me, despite hearing all the arguments to trust the President on the key issues like abortion, is what happens when Harriet Miers is confronted with the choice of whether to stand up for basic principles or whether to compromise. I worked with Miers at the White House. Though my interaction with her was limited, since I was merely a Presidential Writer and she was the Staff Secretary, I had a unique experience with her. In 2001, I was given the task of writing the President’s Christmas message to the nation. After researching Reagan, Bush, and Clinton’s previous Christmas messages, I wrote something that was well within the bounds of what had been previously written (and in case you are wondering, Clinton’s messages were far more evangelical than the elder Bush’s).

The director of correspondence and the deputy of correspondence edited and approved the message and it was sent to the Staff Secretary’s office for the final vetting. Miers emailed me and told me that the message might offend people of other faiths, i.e., that the message was too Christian. She wanted me to change it. I refused to change the message (In my poor benighted reasoning, I actually think that Christmas is an overtly Christian holiday that celebrates the birth of Christ and the beginning of the redemption of man.).

The director and deputy of correspondence supported me. I even emailed Ken Mehlman (then the Political Director at the White House, now the Republican National Committee Chairman), to see what he thought about the message. He was not offended by it in the least. Miers insisted that I change the tone of the message. I again refused, and after several weeks, the assignment was taken out of my hands. I was later encouraged to apologize to Miers. I did not apologize.
And neither do I for opposing this abomination of a nomination.

Good thing she is a person of faith and we should support her nomination on that basis, huh?. Man ... there is much, much coming out that shows Miers is no conservative at all.

Get over to confirmthem.com and get informed. And write/call your senators and the WH.

The momentum is building to critical mass. Let's roll.

Thursday, October 06, 2005

To the point ... What I really think about the Miers nomination

Here's a comment of mine over at the raging confirmthem.com debate:
This whole deal reminds of some one who passes a huge noxious gas cloud in the elevator and then starts bitching at all of us for frowning. And then there’s that Hewitt character over there in the corner smiling and saying, “Hey, who’s wearing the nice perfume?”

This nomination stinks.

So despondent this morning ...

I almost decided to let it go. Just let it go. But the Miers nomination is such an unmitigated disaster, could I just walk away?

Well, I will say this. I still like and support Pres. Bush. We have a war going on, and I am mindful of that. My criticism is directed at this very misguided effort to put the President's friend on the Supreme Court. And her refusal to take the job, too, reinforces my fears that she may be an opportunist too shallow to realize the importance of the moment.

Looking over the commentary today, I ran across this masterpiece from David Frum. It says a lot of what I have been saying in the ongoing commentary at confirmthem.com, but much better. This nomination is cause for great alarm and it should be defeated.

Of special note, take a look at Miers warm affiliation with the left-wing ABA. Folks, without blowing too much cover here, many years ago I foreswore any affilition with this wretched organization full of liberals who contemptuously sneer at conservative lawyers as moronic troglodytes.

Not willing to take the risk that you won't click to read Frum, here is the column in its entirety:
Hugh Hewitt asks whether there isn't some personal animus or motive behind my comments on the Miers nomination. A number of readers have raised the same concern. I suppose it's a natural question. So let me answer for the record that my relations with Miers were always professional and correct when we worked together. I always thought she was a fine and decent person, and I have no personal animus or motive of any kind in this matter.

And though this is probably unnecessary let me add here also: 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, not just in this country but around the world, most recently in for example The Financial Times. This summer I even proposed to do a documentary about decision-making inside the Bush administration, in hope of refuting once and for all the unfair stereotypes about the way in which it does its work.

So if I don't dislike Miers and want the president to succeed, why am I speaking out? Aside from all the substantial reasons I have cited to date, I am speaking out because there are so many others who want to speak but cannot. 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.

Read this article from a December 2004 article in the Legal Times about Miers' promotion to general counsel:

"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.'"

The Washington Post reports that as staff secretary she was notorious for personally correcting the punctuation in White House memos. This is sadly true - and it is also true that in 14 months of working with her on punctuation, I never heard her say anything substantive about any policy issue, with one exception. Yoo again:

"Another red flag for conservatives may be what is regarded as Miers's strongest credential: her work with the organized bar. Miers was elected president of the Texas bar and was a mover and shaker in the American Bar Association. Republicans have long criticized the ABA for politicizing the professional bar by taking positions on controversial social issues such as abortion and providing politically biased evaluations against Reagan-Bush judicial nominees. To be sure, Miers reportedly fought to allow the general membership to vote on the ABA's position supporting the right to abortion, a fact much trumpeted by Bush administration supporters yesterday. But she also apparently urged that the White House preserve the ABA's privileged role in reviewing the qualifications of judicial nominees."

Some NRO readers have challenged me: Why should we trust you when you say that Miers is not qualified rather than trust the president when he says she is?

My answer is: Don't trust me. Trust your own eyes. The woman is 60 years old, a lawyer for more than three decades. Can you see any instance in this long life and career where Miers ever took a risk on behalf of conservative principle? Can you see any indication of intellectual excellence? Did she ever do anything brave, anything that took backbone? Did anyone before this week ever describe her as oustanding in any way at all?

If the answers to these questions is No, as it is, then you have to ask yourself: Why is a Republican president bypassing so many dozens of superb legal conservatives to choose Harriet Miers for the highest court in the land?

I am not saying she is a Michael Brown. But I am saying she is being chosen for her next job in exactly the same way and for the same reasons that Michael Brown was chosen for FEMA. And that is not good enough for me. Is it good enough for you? Hugh Hewitt, you are a lawyer: Is it really good enough for you?
Game. Set. Match.

Withdraw the nomination.

Update: Check this out, too. That song you hear is indeed the fat lady singing.

Tuesday, October 04, 2005

More Miers: Gasp!! There's a Naked Person in the Room

The crowd (albeit small) cheering the Miers nomination is like the people cheering about the infamous Emperor's new clothes. Erick at confirmthem.com hits another long drive out of the park this a.m. Read his post.

Here's the money quote:
Several Senate aides I spoke to have said their particular bosses are livid over the nomination. “There were better candidates with better qualifications,” said one. Another feared that the Democrats and some Republicans on the Judiciary Committee would seek to undermine Miers’ credibility through their questioning. “She has no foundation that we know of in constitutional law. Her credibility will be nitpicked apart and that will hurt the President and us,” said a Republican Judiciary Committee staffer.
For the Republican-first-at-all-cost crowd who has not been paying attention for the last 20 years, there is a huge, important debate over the role of the judiciary in this country that has been needed since Robert Bork was destroyed in 1987. The Roberts hearings did not provide this opportunity, because the Demos wisely backed away. Every one knows that the real battle is with the next nominee. That is, the next nominee will carry the standard. Yet, Pres. Bush has strangely put forth a stealth nominee whose credentials are questioned. These are legitimate questions, too. Thus, even if Harriet Miers were the person to wage this battle -- and I doubt this -- she will have lost it before it has begun.

Yet, some are complaining at those of us who gasped at the sight of the naked emperor. The Democrats know. In spite of their initial warm statements (and why wouldn't they be so warm with such an easy target), they are trying to destroy this President. He has thrown them ammunition to do so. Friends like me protested and "gasped". Now, we are the problem?

The first Pres. Bush foolishly believed the Demos when he "cooperated" with them in raising taxes. The current Pres. Bush will get savaged by his enemies as well if he doesn't wake up soon and withdraw this nomination.

Monday, October 03, 2005

I was conservative, when conservative wasn't cool ...

If you have read this blog much (yeah, both of you), you will note that I have not once posted anything here that could be construed as negative of Pres. Bush. I vigorously supported his election and re-election. I gave my time and money to same. This is nothing new for me.

Remember Barbara Mandrell's song "I was Country When Country Wasn't Cool"? It was popular when I was in high school here in Texas. A lot of "Urban Cowboys" were born then. Me? I just stayed the same. I was never much of a cowboy, even though I am a native Houstonian.

Once I became a Christian in 1978, my world view changed. I began to see how things fit together. No one told me how to think. I discovered that I was a conservative. The world view began to knit together. I came to love and admire Pres. Ronald Reagan. I cast my first vote in a presidential election in 1984 ... for Pres. Reagan. I have voted in every election since. I have supported many, many Republicans and a few conservative Democrats along the way, but my voting record has been consistent -- conservative.

I have been in the ideological trenches for 25 years now. Yes, I was conservative when conservative wasn't cool. I remain, as I always have been, a conservative first and a Republican second. There are still many Republicans whom I admire and support, and on the whole, the party is far closer to my views than the Democrats. Not even close. The Constitution Party, Pat Buchanites, and other members of the "Perfect Church and Counting Angels on Heads of Pins" crowd don't appeal to me.

I believe in winning. I am a pragmatist. I believe in compromise to build majorities. I like to smile and laugh. I like to be "for" things.

And I still like this President. I have had my moments, though. His views on immigration are an enigma and a disappointment. He hasn't done anything to advance a smaller government agenda. His ability to communicate a conservative agenda is terrible. He has been exceedingly nice to his adversaries while seeming to ignore his friends in the Republican base -- that would be conservatives like me.

But he has been stellar in the War on Militant Islam. And his judicial picks have been great. I have some particular interest in this subject, and I follow it closely. He has been great. No question. The Roberts nomination was a master stroke.

That is why the Miers nomination is so troubling. I hear those saying, "Just trust the President." Okay, so she was once a Demo. We can forgive that. She gave $ to Algore. Okay. But ... she is pro-International Criminal Court. Pro gay adoption. Pro gays in the military. Pro women in infantry units. Go look it up. It's on the New Republic's site. The Republicans-first-community isn't responding for now. Don't know why. And ... she brings no personal background that convinces me that she will withstand the assualt from the Left that will surely come once on the Court (assuming, of course, that she is even a judicial conservative). The pressure is immense, and absent a strong personal character with proven ideological stability, we are likely to get another another Kennedy, O'Connor, or Souter.

Have you ever noticed that justices don't drift right? Do they just get "smarter" and more liberal? Please.

Some are touting her evangelical faith. As an evangelical, let me just say: 1) This is humorous; and 2) I did not fall off the proverbial turnip truck. Note this political rule: If you mention your faith as a positive, you are generally not a conservative. I am also sure that Jesse Jackson would claim that he supports life and loves Jesus, too. Heck, he probably does. What are we nominating? A deaconess? An ABA President?

And by the way, this Texan doesn't care that she is from Texas. A conservative American would do just fine.

We could have done so much better. Judges Jones, Luttig, Janice Rogers Brown, Alito, McConnell, Corrigan, etc. I feel badly for each of them, especially Judge Edith Jones of the Fifth Circuit. The only negative from conservatives (other than a difficult confirmation fight, and I believe this could actually be a positive) for Judge Jones was her age -- 56. She is four years younger than Harriet Miers. This hurts.

Now, we have to guess and hope. And a great opportunity for an informative debate (and one that conservatives would win) is lost.

This nomination is just plain a bad idea on all fronts. It smacks of defeatism and of a lame-duck presidency. It needs to be withdrawn and/or defeated. I am hoping for some one to step up and come with me.

Because this conservative still is conservative -- whether the Republican-first crowd thinks it is cool or not.

Update: In fairness, it appears that Miers may not have actually shared the opinions of the ABA report that she forwarded (i.e., supporting the Int'l Criminal Court and gay adoptions). Okay, I would like to hear her take on this. One thing remains clear: She didn't shun the left-leaning ABA at any time in her career, but rather she has remained rather close with what amounts to a liberal-advocacy group.

His WH Counsel Harriet Miers?

What? Are you kidding me?

In case you are wondering ... yes, I am shocked and completely disappointed. Unless some one somewhere knows something huge that I don't, there is no way to spin this pick for SC by Pres. Bush other than a huge mistake.

And perhaps a betrayal of those of us who have worked so hard to elect him President ... twice.

A justice like Scalia? Thomas? Please.

Harry Reid approves of her? That makes me feel better.

I am going to gather some more information before giving my final answer.

But this morning I am saying: This nominee should have been Judge Edith Jones. And Judge Jones' age (56), thought to be a liability, is not when compared to the 60-year-old Miers.

By all indications, a terrible pick. Worse than that, a pick based upon no qualifications but only cronyism. And don't blow smoke in an orifice not intended for such a use by telling me she is the best person for the job. Jones, Luttig, Alito, Corrigan, McConnell and Garza are out there ... and we get Miers? What?!

At least the spineless Republicans in the Senate preserved the filibuster. I may filibuster this pick.

Update: Still steaming ... here is a comment of mine over at confirmthem.com:

"Pres. Bush, who seems to understand the need to stand and fight on the international stage doesn’t get it on the domestic front. ... His enemies will be emboldened and his friends … it’s inaccurate to say they will be depressed … they are completely deflated. Why fight for this crap?

When you have the Senate, the House … had, I should say … unbelieveable. Maybe this proves that the parties are really no different as some have been saying."