Wednesday, January 25, 2006

Thoughts on Justices...

With the pending Senate confirmation of Judge Alito, some thoughts on the recent nominations are in order.

Chief Justice John Roberts: This was a grand slam home run. Roberts was a brilliant lawyer who handled one very bad situation (representing clients who benefited from gross judicial misconduct) quite well ("I have no brief to defend the District Judge's decision to discuss this case publicly while it was pending on appeal, and I have no brief to defend the judge's decision to discuss the case with reporters while the trial was proceeding, even given the embargo on any reporting concerning those conversations until after the trial."). He was good - he took a situation where the entire case should have been re-started from square one, and he managed to keep some of the findings intact. He's a good justice, although I would have preferred to see Clarence Thomas promoted to Chief Justice, with Roberts as an Associate.

Harriet Miers: The darkest chapter in the recent history of the conservative movement. The opposition started when a New Republic reporter misreported Miers' work with the ABA. Then, those who did not join the effort to torpedo her nomination were insulted. Why? Because President Bush had earned the trust of conservatives on judicial nominations. Instead, his pick was borked. The principles of a fair hearing, and an up-or-down vote onthe Senate floor after the committee made its recommendation - campaigning on which meant a net gain six seats in the Senate for Republicans in the 2002 and 2004) were abandoned. And you can bet that smart folks on the left were taking notes. Conservatives had just handed the Democrats a big weapon for the next battle. They did so because they not only failed to think outside the box, but they also did not think through the consequences of attacking Harriet Miers the way they did.

Judge Samuel Alito: This pick also looks very good, even though Alex Kozinski was my favorite. The real risk was that Michael Luttig, who is about as First Amendment friendly as John McCain, would have been the pick. Alito got through the committee, but it was really a matter of luck. The Democrats resorted to character assassination over Concerned Alumni of Princeton, rather than to use the excuse that some conservatives had created for them in the Miers fiasco (namely, they were afraid that Miers would not pass their litmus tests). The Democrats came across as real jerks, and that meant enough people in the Gang of 14 were willing to break a filibuster. Conservatives got lucky in this battle - had the Democrats played their hand better, I think they would have been able to sustain a filibuster of Alito.

For this Congress, the Gang of 14 has worked pretty well. John McCain got stuff done, and he's going to get the credit for it. All too often conservatives seem to have been more interested in having a fight as opposed to obtaining the objective. If most of the objectives can be obtained without a battle - then take them, and fight the battle later, when the situation is better. It's Strategy and Tactics 101. All too often a frontal attack by conservatives against the left has led to a media pounding, usually followed by an electoral loss - at which point they can thump their checsts and say, "We stood on principle," while conveniently omitting the fact that the other side is all too often in a position where it is implementing their agenda.

The positives: We got two very good justices out of the deal. Roberts and Alito are going to do a fine job - and they will be around for a while.

The negatives: The Miers nomination still has left the Democrats with a weapon - albeit their actions during the Alito hearing has lessened its impact. I no longer trust the judgement of the people at National Review (both online and paper) who led the charge. The same is true for most of the others who resorted to condescension and name-calling because they had already made up their minds on Miers. One notable exception was my colleague at, Austin Bay, who in his discussion of the nomination, unfailingly respected those who disagreed with him and did not stand for personal insults. This loss of trust among beltway establishment conservatives will remain with me for a long time.

Do the positives outweigh the negatives? Only the next nomination will tell. Stevens and Ginsburg would be the most likely vacancies, and that's where things will get very nasty and difficult. As for me, I'm more interested in the new baseball season at this point.

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