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More Evidence of the Miers Tipping Point:
Krauthammer is giving exit advice, new questions have arisen about the Senate questionnaire, and the Wall Street Journal editorial page weighs in:
  Although skeptical from the start, we've restrained our criticism of the Harriet Miers nomination because we've long believed that Presidents of either party deserve substantial deference on their Supreme Court picks. Yet it now seems clear--even well before her Senate hearings--that this selection has become a political blunder of the first order.
  Thanks to Bench Memos and Confirmthem for the links.

  UPDATE: In a sign that the common wisdom may have shifted — or, if you prefer, a sign that the market hath spoken — or, perhaps, a sign of nothing at all — Tradesports betting on Miers today has the chances of her being confirmed in the 20% range, down about 40 points from yesterday.

  ANOTHER UPDATE: And then there is this news from the New York Sun, via Howard:
  [A]t least one conservative senator is said to have asked White House officials yesterday to withdraw the nominee's name because of a growing lack of enthusiasm for Ms. Miers among Republicans in the Senate.
  "I don't know exactly what was asked, but displeasure was expressed," a source familiar with the White House strategy on judicial nominees said. "The White House responded that it would do no such thing."

  AND ANOTHER: I gather the typos in her questionnaire aren't helping, either. Normally such nits are irrelevant, of course, but they make you wonder.
anonymous coward:
Currently the bid and offer for Miers' confirmation are 20 and 24 on Intrade. Dramatic collapse today on little (public) new news--so maybe we really are at the tipping point, straw/camel, &c.

Or maybe it's just a blip caused by low liquidity.
10.21.2005 10:55am
SimonD (www):
I like Krauthammer's advice ("Finally, a way out: irreconcilable differences over documents...The Senate cannot confirm her unless it has this information. And the White House cannot allow release of this information lest it jeopardize executive privilege"), although I have to admit that I get less and less concerned about how Bush saves face over this with every passing day. the continuing refusal to withdraw the nominee is dragging out the agony in a public feud that is doing serious damage to the GOP.
10.21.2005 11:00am
Texican (mail):
Just a thought,

GWB has proven time and again that he is one step ahead of his opponents politically. I'm betting that this plays out the same way.

I think Miers is nothing more than a stalking horse. Someone to raise the hackles for the 'pubs. I wouldn't be surprised if the Miers nomination is to do nothing more than energize them into being willing to take on the dems head on on a nominee they would prefer.
10.21.2005 11:22am
Nobody Special:
I don't know how illiquid the market is- the volume of contracts is pretty large now (around 7,000; representing $700,000 in potential payout), and there's four to five hundred shares listed for sale. Not many people have bid quotes up, though- looking like no one wants to buy.
10.21.2005 11:32am
David Maquera (mail) (www):
The White House's continued prodding for the Miers nomination is the political equivalent of the Charge of the Light Brigade at the battle of Balaklava. The only reason GWB has outwitted political opponents in the past is because they were liberals who are even dumber than he is. This time, the opposition to GWB's nomination of Miers is led by true conservatives jealously guarding the legacy of Barry Goldwater and Ronald Reagan. I now believe the Miers nomination will be voted down by the full Senate 52-48.
10.21.2005 11:52am
Anonymous Jim (mail):
If she gets to the full Senate when will that be? End of Nov or beginning of Dec? THe next nominee would be in place by when, February? How many of this term's cases will be left to decide?
10.21.2005 12:02pm
jACKJOHN (mail):
The defenders of Miers' nomination say that Miers is qualified. Essentially, they claim that she is a complex litigator with excellent case management skills, but not a constitutional scholar of the first order. The former is more relevant to adjudication, they say. Fine. Let us take the premise seriously. In that case, then, it seems the Senate should ask her questions related to complex litigation and case management, not obscure constitutional questions.

1. What does she think of Lon L. Fuller's "The Forsm and Limits of Adjudication"? Has she read it?
2. Does she have an understanding of comparative procedural systems in practice? For instance, what does she think of Mary Ann Glendon's analysis of foreign legal systems in "Comparative Legal Traditions"?
3. What does she think of using preclusion rules as an alternative way to overcome joinder complexity? In particular, what does she think of Justice Rehnquist's dissent in Parklane Hoisery Co. v. Shore?
4. How does the Due Process Clause figure in precluding persons that did not participate in a prior case? In particular, what is her opinion of Richards v. Jefferson County, Alabama, a SCOTUS case?
5. What does she think of preclusion after notice and opportunity to intervene, particularly in the context of reverse discrimination suits where consent decrees have already been entered? For example, Martin v. Wilks, another SCOTUS case? What is her opinion about Congress' response to this case, with 42 U.S.C. sec. 2000e-2(n)?
6. What is her opinion of the Eleventh Amendment jurisprudence we have thus far? Does the text govern? How do we reconcile the text of the Eleventh Amendment and the subsequent jurisprudence? What is her opinion of the diverging approaches of doing so?
7. Is she concerned about the limitations on aggregation imposed by territorial jurisdiction? How, in her opinion, does this play into asbestos litigation? Does she have an opinion of In re Asbestos Litigation?
8. Does Strawbridge v. Curtiss announce a constitutional rule, or is the diversity required for diversity jurisdiction by the constitution broader or narrower than what is promulgated by that case?
9. When is it appropriate for judges to use the All Writs Act? Was the Terri Schiavo case an example?
10. Is compulsory consolidation in bakruptcy cases fair to litigants? Why or why not? Do litigants have a constitutional right to be masters of their own complaints?
11. What are relevant policy concerns of class actions? Discuss Hansberry v. Lee and In the Matter of Rhone-Poulenc Rorer Inc. In particular, is Judge Posner wrong? Why or why not?
12. Are there constitutional or jurisdictional limits on mandatory class actions? If they exist, how do they play into the case of In re Federal Skywalk Class? Was the outcome of that case justified? Why or why not? What conceptual framework would you use to decide that case today?
13. What is federal common law? How is it different from general common law in federal courts? Discuss In re Agent Orange.
14. You are on record as opposing judicial activism. Which judge is more activist in your view: Jack B. Weinstein or Edward Becker?
15. What is the proper use of a court's remedial powers? Discuss Missouri v. Jenkins. In addition, what is the rightful position, and what are some common critiques of this analytical tool?
16. How much power should magistrate judges have in complex antitrust cases? How could overpowering magistrate judges possibly conflict with the guarantees of the 7th Amendment?
17. You have experience with antitrust law. Do you agree with the result in Topco? What could possibly be wrong with it?
10.21.2005 12:15pm
Neal R. (mail):
Just curious: how was Miers trading as a potential nominee just before her nomination? That took me by surprise. At this point, her withdrawl or defeat would not.
10.21.2005 12:37pm
elaine (mail):
Not that the nomination isn't in trouble, it is, but that Raw Story story was pretty silly. OK, she misstated the dates of her directorship, which is sloppy (and the overall sloppiness of the papers is striking from someone whose cardinal virtue was supposedly meticulousness). BUT as any one with even a glancing familiarity with securities law knows, the fact that a company was named as a defendant in a securities class action suit is meaningless. Any company that suffers a stock drop or financial difficulties is a prime target for the greedy plaintiffs' bar. And the suit in question was dismissed, i.e., did not state a claim under the securities laws. So it's an enormous stretch to say that the existence of that lawsuit somehow suggests wrongdoing by Miers.
10.21.2005 12:52pm
Mgmax:
I thought Bush would stick with it because he'd at least get the advantage of watching the Dems vote against a woman for "the woman's seat."

Now, though, I think when she withdraws, he'll nominate a fearsomely qualified conservative man, and watch as the Dems scream "Well, we still meant a woman, just not THAT woman!"

Either way, I think short term blow to the president, long term blow to the idea of affirmative action SC justice selection.
10.21.2005 12:55pm
Chris24601 (mail):
Notice that she's back up to about 40. Still a big drop, though.

I remember that her nomination shares shot up the week before the nomination--about 15 the day before, I think.

I thought the payouts were $10, not $100. Could be wrong about that.
10.21.2005 12:57pm
Crank (mail) (www):
The documents issue would be a terrible precedent, as it would legitimate the Democratic attacks on Miguel Estrada and other executive branch nominees.
10.21.2005 12:59pm
Nunzio (mail):
I'd be surprised if Miers' withdraws. Bush is a stubborn guy and values loyalty. If Miers doesn't work out, Gonzales is next up.
10.21.2005 1:50pm
David Maquera (mail) (www):
The Wall Street Journal Editorial cites Pat Robertson as vowing to politically punish any Senator who votes the Miers nomination. I think Pat needs to stick to doing the Lord's work like calling for the assassination of Latin American elected officials (sarcasm intended).
10.21.2005 1:55pm
David Maquera (mail) (www):
Harriet's typos only underscore her lack of qualifications and competency to serve as justice on the SCOTUS. Ever hear of "spellcheck" Harriet???
10.21.2005 2:04pm
anonymous coward:
I figure it's the confirmation staff sabotaging Miers...or at least unwilling to work 18 hour days.
10.21.2005 2:17pm
Dave! (mail) (www):
"I gather the typos in her questionnaire aren't helping, either. Normally such nits are irrelevant, of course, but they make you wonder."

Well, since one of her "qualifications" was being a strict grammarian and always correcting everyone else's memos, you'd figure she could proofread her own response to the U.S. Senate!
10.21.2005 2:24pm
The Family:
The tipping point was reached when Scrappleface turned on Miers:

"Q: 22. Potential Conflicts of Interest: Specifically, explain how you will resolve any conflicts that may arise by virtue of your service in the Bush Administration, as George W. Bush's personal lawyer, or as the lawyer for George W. Bush's Gubernatorial and Presidential campaigns.

MIERS: "The President would want me to be fair in such cases, and not to favor him just because he was the best governor ever, and my most favorite boss. So, I will be impartial because that's what the President wants."
10.21.2005 2:41pm
David M. Nieporent (www):
The documents issue would be a terrible precedent, as it would legitimate the Democratic attacks on Miguel Estrada and other executive branch nominees.

Crank, the difference is that because of Miers' (lack of) record, the documents issue is legitimate for her in a way that it wasn't for other nominees. We don't need a few documents from Roberts' time in the Solicitor General's office because we had so much paper on him. Miers hasn't been a professor or a judge, nor does she have any public paper trail of any sort.

Besides, by withdrawing her name, Bush wouldn't be conceding that these documents should be disclosed.
10.21.2005 4:10pm
SP (www):
Texican,

My first, gut level, reaction to the news of her nomination was exactly what you posit. It seems that the left had not wasted any bullets on Roberts and was loading for bear this time, hence the need for a sacrifical lamb. (Cliche meter exploding). The fact that the farce has gone on this long is frankly shocking to me.
10.21.2005 4:15pm
Buckland (mail):
Tradesports is interesting now...

On the question of whether she will be confirmed the bid ask is 36/40.

However on the number of confirmation votes she will get the 50 or greater is at 66/74.

So I guess the market is saying she will be rejected with EXACTLY 50 votes (or is 50 votes a confirmation?).
10.21.2005 4:21pm
Steve:
It seems that the left had not wasted any bullets on Roberts and was loading for bear this time, hence the need for a sacrifical lamb.

The Left sure hasn't had to spend many bullets on this nomination, either.
10.21.2005 5:09pm
Shelby (mail):
Well, 50 votes is a confirmation if Cheney can be persuaded to cast the tiebreaker vote in her favor. ;-)

People who see a "deep game" here are overreading things. When Coca-Cola announced New Coke, it was fiercely attacked. A couple of months later Coca-Cola rebranded the original as "Coke Classic". This was widely hailed as marketing genius, until it came out that the whole thing was ad-hoc. The marketing people at Coca-Cola thought everyone would love New Coke; then they thought they just had to tough out a brief period of opposition. Only then did it occur to them to re-release the traditional-formula Coke.

I think the same thing is happening here, except Bush can't push both New Coke and Coke Classic simultaneously for a SCOTUS seat. This is too complex a process, with too many moving parts, for the White House to deliberately rile up its base like this. As someone who voted for Bush in 2004, I think this whole episode is another example of his and his administration's arrogance and blind faith in loyalty over competence.
10.21.2005 5:16pm
SP (www):
'It seems that the left had not wasted any bullets on Roberts and was loading for bear this time, hence the need for a sacrifical lamb.'

The Left sure hasn't had to spend many bullets on this nomination, either.


Steve - I wasn't saying it was a good plan, but at the time, that appeared to me to be the best explanation for what the plan was.

Shelby - I think that the 'plan' assumed that the base would be happen with the nominee (she is Bork-proof, after all), and once she started being attacked from the right instead of the left, the GWB conflation of 'stubborness in the face of opposition' with 'strength of character' took over, and that's how we are where we are.
10.21.2005 8:02pm
CharleyCarp (mail):
The battles GWB has won in the past have not come from being smarter than the opposition, but from being bolder: to the point of recklessness. He puts all the chips in the pot -- his, yours, and mine. Defeat becomes such a disastrous possibility that even people who disagree are forced to go along.

It's the primary pitch right now: support Miers or you'll do irreparable harm to GWB.
10.21.2005 9:19pm
mauro (mail):
A very interesting site of puzzles:
Oscar's Puzzles
10.28.2005 1:26pm