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Miers Confirmation Politics:

Orin has posted several interesting Miers pieces this week--I think the Novak column he mentioned is especially insightful. Here's a few things that I didn't notice my colleagues mention this week, especially on the politics of the Miers confirmation, that I found informative and stimulating.

Steven Teles has an interesting post on Mark Kleiman from earlier this week where he argues that the "Miers flap" among conservatives is an internal battle between the "nonelectoral intellectual" wing of the conservative movement versus the "electoral" grassroots wing. He writes:

So today each party has two wings--an electoral wing, which tends to be more populist and rests on a larger mobilized base, and a non-electoral wing, which tends to be elitist and defines itself more by intellectual principles. Each of these wings has substantial coordination within itself, and some degree of "coupling" to the other wing.

Thus back to Miers. What this conflict is really driven by is the temporary "decoupling" of the electoral and the non-electoral wings of the Republican party. The Christian Right, for example, is largely (but not exclusively) connected to the electoral wing of the Republican party. They care more about outcomes than constitutional principles, and thus are likely to be more susceptible to being persuaded that Harriet Miers will rule their way, regardless of her credentials or the quality of her mind. The lawyers who actively participated in the growth of the Federalist Society, on the other hand, think of legal change as a long-term game, one that is as dependent on shifts in "legal culture" and ideas as it is on who votes which way on the Court. Their conception of how you really create legal change is to produce an entire elite, trained in the top law schools, oriented to constitutional principle, and linked together into a network. Miers does not come out of that process of non-electoral mobilization, but out of the business wing of Texas politics--and hence her involvement with Bush's electoral and political career.

In essence, the non-electoral wing of the Republican party sees legal change as a "long twilight struggle" that happens slowly and indirectly, and in that process Justices matter as much for the intellectual leadership they show as the direction they rule. That is why so many of the Federalist Society types (and the non-lawyers they have influenced) preferred someone like Mike McConnell or Michael Luttig, both of whom are clearly "one of them." Interestingly, had either of these been nominated, both the electoral (at least the Christian conservatives) and non-electoral wings of the Republican party would have been pleased.

This seems largely correct to me--and mirrors my observation in my Legal Times column (now available on-line) that it is not enough to simply choose a Justice who will "vote right" but one who has the ability and temperament to try to help change the legal culture (although I would add that Justices who lack a well-developed judicial philosophy eventually may not even "vote right" down the road). Presumably I fall squarely in the "non-electoral" category.

Consistent with Teles's observation about a gulf between the electoral and non-electoral wings of the Republican Party is Donald Lambro's post on the Washington Times blog "Harriet Miers' Enigmatic Polls." Lambro notes that although Miers's nomination has been roundly criticized by conservative intellectuals, so far conservative voters are supporting her at roughly the same rate as they did Roberts when he was nominated (although many more are undecided at this point):

However, out in the real world, it's a far different story. Pew found that "opposition to Miers is largely partisan," though, notably, a narrow majority of conservative Republicans (54 percent) favor her nomination. And less than half of Republican moderates and liberals (43 percent) do, too.

Among conservative Republicans alone, Pew found just 9 percent were opposed to her.

News reports suggest that there is a wave of opposition to Miss Miers from conservative Republicans. But Pew's poll finds that "opposition to Miers among conservative Republicans is not much greater than it was to [Supreme Court Judge John] Roberts in September."

On the other hand, "about twice as many conservative Republicans express no opinion of Miers nomination than did so regarding the Roberts nomination last month (37 percent vs. 18 percent)."

At the same time, opposition to Miss Miers among Democrats, "especially liberal Democrats, is greater than it was toward Roberts. About half of liberal Democrats (52 percent) say Miers should not be confirmed, compared with 40 percent who opposed Roberts."

Finally, on the American Spectator blog John Tabin counts heads on the Senate Judiciary Committee and concludes that it "Doesn't Look Good" for Miers for getting a positive vote out of committee (he notes that Supreme Court nominees cannot be killed in committee). He expresses great confidence that she cannot win confirmation:

Democrats might have concluded that it would be better to back Miers than risk facing a stronger conservative. But after the latest revelations about her pro-life views, Miers can expect almost no support from the party of Roe v. Wade.

Consider just the Judiciary Committee. Unless she explicitly declares fealty to upholding Roe, the five Democrats who voted against John Roberts won't vote for her. The three who did vote for Roberts — Herb Kohl of Wisconsin, Russ Feingold of Wisconsin, and Patrick Leahy of Vermont — did so on the grounds that the overwhelming qualifications of the nominee trumped their ideological concerns. With Miers, the qualifications are significantly less and the ideological concerns are now arguably greater. Miers will probably not get even a single vote from the Committee's eight Democrats.

She can't count on Committee Republicans, either. Another conservative Committee member, Jeff Sessions of Alabama, commented after the TUL-PAC questionnaire came out that Miers still needs to "show she has the capacity to be a Supreme Court justice." The New York Times reported two weeks ago that after meeting with Miers, conservative Committee member Sam Brownback of Kansas "said he would consider voting against the nomination, even if President Bush made a personal plea for his support." And squishy Committee Chairman Arlen Specter, along with ranking Democrat Leahy, it was reported yesterday, was very displeased with Miers's "incomplete" answers to a Judiciary Committee questionnaire.

Under a bipartisan agreement, Supreme Court nominations can't be killed in committee. But if all the Committee Democrats and even one Republican vote against her, the vote will be 9-9 and Miers will go to the Senate floor without a recommendation that she be approved. This will make it much harder to get Miers confirmed on the Senate floor. It will be harder still — probably impossible — if ten or more Senators vote against her in committee.

Finally, a friend of mine observes that he and other conservative lawyers are now living in fear of a "Stockdale moment" in the televised confirmation hearings. Even worse, whether fairly or not, Ms. Miers is starting to take on a bit of a Quayle-like persona where people will be lying in wait for the smallest trip-up and to expand it into something larger (consider, for instance, the scrutiny and questions that have been raised about her questionaire and the "proportional representation" issue). This same friend reports that he once saw Miers give a speech and has little confidence that Miers will substantially improve her case during her hearings:

She struck me as surprisingly unprepared and inarticulate (much like Bush himself). Indeed, she and Dubyah appear to be graduates of the same public speaking seminar . . . and that isn't a compliment. I think we are in for a lot of Supreme Court opinions with lines like "We're getting after 'em. We're smoking 'em out. We want 'em dead or alive" and "After reading the opinion below, I'm tellin' ya, the lower court did one heckuva job."

At this point it really seems like it could go either way, but the White House seems to be working with a pretty thin margin for error. Much of it depends, it seems, on whether the Democrats decide that they are better off with a stealth candidate like Miers or what is behind door #2. At this point, however, Tabin's calculations seem sound--although Miers is a stealth candidate on almost every issue, in light of the revelations over the past few weeks, she no longer seems to be a stealth candidate on Roe. In that light, it is hard to see how many Democrats could vote for her, not to mention liberal Republicans. The remaining margin really seems razor-thin at this point, such that any missteps at her hearings seemingly could prove fatal.

Scott Scheule (mail) (www):
You shouldn't "tink" with things that aren't yours.
10.21.2005 5:55pm
Buckland (mail):
Electoral/grassroots vs nonelectoral/elite split seems right. Right now there are probably a number of Republican Senators who would like to see the nomination killed, but are in mortal fear of grassroots activists suspecting that their fingerprints on the murder weapon. Assuming the nomination survives to a vote (rather small assumption considering GWB's loyalty to appointees) senators will have a rather uncomfortable decision to make.
10.21.2005 5:59pm
Scott Dinsmore (mail):
Todd, thanks for the summary of these points. Perhaps the coalition issues you raised (electoral vs. long-term change) offers some of the "framework" one commentator requested. For 6 years I worked in civic education, translating policy issues into terms meaningful to 15 year olds.

What would readers suggest is the enduring lesson here?

Coalitions are fragile? Ideology can conflict with certain leadership priorities? The court is political? It's a good thing we have a Constitution and a form of coalition politics or else even allies would eat each other?
10.21.2005 6:09pm
Shelby (mail):
I'm increasingly convinced that no strong selling point for Miers will emerge, and that she really is profoundly unqualified for the modern Court. Paradoxically, the bar for her to "do well" at the hearings is concomitantly lowered -- if she doesn't really blow it people will think, Gosh, she wasn't THAT dreadful. How much chance is there she could pick up some sympathy/relief votes that way?

Scott D: There can be a major disconnect between what people THINK they're voting for when they back a candidate, and how that person actually acts in office.
10.21.2005 7:58pm
Jeff H (mail):
This sort of echoes what I have been thinking. One can be profoundly opposed (or supportive, for that matter) of, for example, abortion rights and still think that Roe was wrongly decided. Other folk could care less about why it gets overturned - they just want abortion outlawed returned to individual state legislatures to decide. For those who think the Constitution is something more than what a majority of nine justices think, a vote based on personal beliefs about the wrongness of abortion would be no more right than a vote based on its perceived utility. If Meirs's primary qualification is that she would overturn Roe because she's against abortion, that's no more principled than picking a nominee because he/she would uphold it. Perhaps the administration confused opposition to the underpinnings of Roe with opposition to abortion as such.
10.21.2005 8:08pm
Grant Gould (mail):
Jeff -- I know populist leftists and I know populist rightists and as far as I know, none of these "electoral" constituencies want abortion returned to the states. The question is whether it is legalized or forbidden at the federal level; an actual return to the states is all but impossible in light of the court's repudiation of federalism.

Nobody but us weirdo pro-federalism types genuinely believes that abortion policy will ever meaningfully be at the state level. It's Roe, or a federal ban.
10.21.2005 9:32pm
Adam (mail) (www):
Watch out -- it's the same "expectations game" lowering that was done with then-Governor Bush during the 2000 debates. As long as Miers doesn't drool, and has a few good soundbites, she'll be declared Totally Awesome by a compliant press.
10.21.2005 9:32pm
Harpo:
I would not bet a single cent she votes to overturn Roe+Casey.
10.21.2005 11:00pm
Willard:
But surely the "elite" or "intellectual" position is intellectually indefensible. The most influential S.C. cases of my lifetime are Brown and Roe v Wade; surely no one (or at least, no one with pretensions to being an intellectual) argues that these cases were well-reasoned, or were persuasive except to the extent that you already agreed with the outcome, or reflected some coherent jurisprudential philosophy. It's all about results.

And indeed, it should be. Remember the beginning of "Beyond Good and Evil." Justice is most surely a woman, and unlikely to be gained with the sort of facile analysis that scores high on the LSAT.
10.21.2005 11:13pm
trotsky (mail):

It's Roe, or a federal ban.



If Roe were overturned, the Republican majority in Congress would disappear in the next election. They wouldn't have time to get around to the "federal ban."
10.22.2005 12:43am
Cato the Elder:
This "grassroots" vs. "elites" stuff is pure nonsense. I live in the midwest, and have talked to dozens of "non-elites" from both parties about this nomination. I can literally count all of the pro-Miers people on one hand. Nearly everyone I have spoken has rolled his or her eyes, said something like "what did you expect, this is what this President does," and sighed in dismay.

With all due respect to the learned individuals who came up with this ridiculious theory, my experience is much more consistent with the fact that only 30% of Americans believe that Miers should be confirmed.

http://www.confirmthem.com/?p=1672

Given the timing of this poll, we can safely assume that Miers latest slip up -- she practiced law in Texas for several months without a license -- did not yet work its way into the numbers. Thus, 30% is probably an overstatement. Compound that with the potential for committee questions regarding the 10 liens taken against her low-income properties; scandals under her watch at the Texas Lottery Commission; her obvious lack of knowledge of the Constitution (for example, "proportional representation"); and her unethical role in vetting candidates for the job she was seeking. Things don't look good at all.

Say what you will about "electoral" vs. "non-electoral." All I know is that 30% is pretty freakin' low.
10.22.2005 2:18am
Jeremy Pierce (mail) (www):
If the Democrats insist that she will overturn Roe, they're going to look like fools. There's no way you can be sure that someone who thinks an amendment invalidating Roe would be good policy is going to vote to overturn it in court. That won't stop them, of course. At least three of them on the committee and more in the main Senate explicitly cited Roberts' unclarity on the issue as grounds of voting against him. It's not going to be that they think she will overturn Roe. It's that they can't rule it out. Of course, that's pretty foolish-looking too. With that standard, no one can be confirmed without violating the A.B.A. ethical standard and declaring an intent to rule on a particular case before having heard the arguments.

This idea that Republicans don't or shouldn't want to overturn Roe is getting tiresome. It's a terrible argument. The idea that Republicans will lose office if Roe gets reversed is based on the idea that Republicans have no issues once that's set in stone. Even if that were true, there's no guarantee that it's set in stone simply because the Supreme Court overturns Roe. Future Supreme Court decisions could find another basis for abortion on demand. The legislature could pass laws allowing or restricting abortion independently of the courts. Other issues pro-lifers care a lot about wouldn't necessarily be decided by overturning Roe. It's simply insane to think Republicans will lose all influence if Roe is overturned, even if you think abortion is the only issue that gets Republicans elected (which just isn't true to begin with).
10.22.2005 9:48am
David Maquera (mail) (www):
The "Teles observation" has to be the dumbest, overly simplistic, baseless analysis I have ever heard. I can assure Teles that there are plenty of grass roots conservatives like yours truly who have beat the pavement, waved placards in front of polls on election day, worked phone banks, etc., who think the Miers nomination is as nonsensical as the twin growths of federal spending and federal government under the leadership of a Republicrat White House and Republicrat Congress. Accordingly, I can personally guarantee that any Republican Senator who votes to confirm Miers will be crushed in Berrien and Macomb Counties in Michigan in the 2008 GOP Presidential Primary.
10.22.2005 1:24pm
Jeff H (mail):
Grant:

Sorry my sarcasm didn't come thru. I suspect the sort of people who were comforted by the "trust me, she's an evangelical" as code for "she's against abortion," want abortion outlawed. I just was trying to throw a bone to the alternative.

Having said that, I tend to agree that it's politically unlikely we'll ever return to a state-by-state decision on the question.

I would like, however, to reiterate that my main problem with Meirs is that she seems to have been nominated because she would vote a particular way on issue(s?) of importance to this president without regard to why or why not that position is consistent with the Constitution.

Because of the type of clients I generally represent civil defendants), I'm not entirely comfortable with someone in the Scalia/Thomas mode who does not believe that the due process clause limits a state's award of punitive damages. That position is certainly consistent with their philosphy, but at some point it seems to me there has to be a limit (and I know that it always matters whose ox is being gored). Even though Meirs might be okay on this issue, it still seems to me it would be based more on her sense of "right and wrong" rather than any principled analysis of the Constitution. Ultimately, I am unimpressed by someone who seems to be nominated on the basis of how she would vote rather than why she would vote that way.
10.22.2005 7:35pm
alexandra (mail):
I actually think this is a simplistic analysis. I am a member of an independent baptist church and in the modern evangelical era, a fundamentalist baptist is of the extreme fundamentalist variety. However, at my church, i'd estimate most members are not college graduates. Yet, most all of us agree that Miss Miers is unqualified and the "fact" that she is a christian has no basis for her qualification for the Supreme Court. I have said that if the nominee were an athiest, I would'nt care. As long as they limit themselves to the authority only granted by our constitution and like Roberts respect the rule of law. I woke up that dreadful morning when Miers was announced and felt much like Ann Coulter. I listened to Dobson, To Jay Secklo, and even Hugh Hewett. I was astounded that they would support this candidate. I am proud of Phyllis Schafly (who if you visit her site does an excellent analysis of what christians like me want) But like the "elites", I did'nt want a "yes" judge and was insulted with Bush's poor sales pitch.

Am I a social conservative? Yes. But most of the christians I know are also economic conservatives and understand that Jesus was not a socialist but actually encourages us to work hard,own property, and accumulate an heritance for our children. I think whoever did this analysis might be surprised to know that fundamentalist (Bible beliving) christians have a full blown world view in all areas (science, law, economics,etc.) So although I might disagree with elitists in some areas, it is not because I simply want a yes woman for Dobson or Bush on the court.
10.22.2005 10:08pm
Insider (mail):
State of U.S. Courts. . .

Consider the following information I discovered searching the web:

Open Letter

October 23, 2005

United States Judicial Conference
Administrative Office
of the United States Courts
Thurgood Marshall Federal Judiciary Building
One Columbus Circle, N.E. 20544

Mr. Albert N. Moskowitz
United States Department of Justice
Civil Rights Division
950 Pennsylvania Ave, N.W.
Washington, D.C. 20530

Mrs. Mary Beth Buchanan
U.S. Attorney Western Pennsylvania
United States Department of Justice
U.S. Post Office and Court House
700 Grant Street, Suite 4000
Pittsburgh, Pa 15219

United States Judicial Conference
Chief Justice United States Supreme Court
c/o Mr. William K. Sutter, Clerk
Office of the Clerk
c/o Mrs. Pamala Talkin
Marshall of the Court
No. 1 First Street, N.E.
Washington, DC 20543

Third Circuit Judicial Council
United States Court of Appeals
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

Chief Justice
United States Court of Appeals
for the Third Circuit
c/o Toby D. Slawsky, Esq.
Circuit Executive
22409 U.S. Courthouse
601 Market Street
Philadelphia, Pa 19106-1790

RE: Formal Complaint (filed under the Judicial Improvements Act of 2002
28 U.C.S. Sections 351-364); Formal Complaint (filed under 28 U.S.C.
Section 372(c)); and Request for Investigation (pursuant to 28 U.S.C.
Section 604)

Dear All:

Please be advise of the following criminal activity.

On or about October 11, 2005, Marcia M. Waldron, Clerk for the Third Circuit Court of Appeals forwarded a copy of an Order (No. 05-3702) that, among other, requested a copy of the district court docket entries. On October 21, 2005, I purchased a copy of the docket entries (No. 03-1400) and forwarded such to the Third Circuit. However, I noticed the August 16, 2005, entry entered by JSP that advised the clerk's office couldn't locate documents #16, #64 and #86. That is, the clerk office wasn't able to transmitted the complete record (No. 03-1400) to the Third Circuit.

In short, previously I submitted unequivocal evidence of perjury (violation of Section 1746 Title 28, United States Code) to the Department of Justice, federal court and others. Since my request for a formal investigation, the evidence (documents #64 and #86) was somehow removed from the official court file.

At issue is an affidavit submitted to the court by Cassandra Colchagoff (an attorney). With the November 10, 2004 affidavit Mrs. Colchagoff attempted to change her testimony (December 2003 affidavit). That is, the district court specifically cited her December 2003 testimony as its reason for dismissing the constitutional claims in the matter No. 03-1400. Mrs. Colchagoff had testified (made a material false declaration) that there was "no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding." The district court ruled that "without a link to federal funding" I couldn't pursue my constitutional claims against Kaplan.

The only difference between the two Colchagoff affidavits is the November 10, 2004, testimony no longer suggested, "no link to Kaplan Higher Education Corporation (Kaplan College) and no link to federal funding." Likewise, her attorneys, Sara Shubert, Laurence Shtasel, and Blank Rome appears to have changed their representation to the court. Her attorneys now acknowledged my October 15, 2000, Kaplan College enrollment letter and admitted in footnote 2 "certain colleges operated by Kaplan Higher Education Corporation, such as Kaplan College, received federal funding."

Because this information (Document # 64 and #86) is "fatal" to the court's decision at No. 03-1400, it has been unlawfully removed and withheld from the United States Court of Appeals for the Third Circuit. The unexplained disappearance of document #64 and #86 is further proof of criminal activity (obstruction of justice and intentional violation of my civil rights).

Please note, the November 10, 2004, Cassandra Colchagoff affidavit (Document #64 and #86) now missing from the court record, at paragraph 23, specifically admitted malfeasance.

In conclusion, the missing affidavit (Document #64 and #86) not submitted to the Third Circuit is decisive for all factual issues related to this matter and directly contradicts Judge David S. Cercone's Memorandum opinions (May 14, 2004 and June 29, 2005).

I demand an immediate investigation.

Respectfully,
(Name Removed)
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