SOUTH DAKOTA STRAIGHT TALK

Straight Talk Commentary – Harriet Miers was a good appointment, now flawed by the process. Republicans may have handed Democrats a victory and deprived a conservative limited government advocate a seat on the high court.  At the heart of Meiers’ withdrawal is the President’s weakened political condition and the overheated anxiousness of the extremist to just have a good fight highlighting their issues. Results are secondary.

While I do not always agree with Hugh Hewitt, I too hope we have not set a standard that only judges must be considered for appointment to Appellate Courts. It is important that we have decision makers who have real world experience. Choosing nominees exclusively form the cloisters of the bench and academia will prevent every day go to work, pay the bills, save for the children’s college, hard working people from judicial service. We also need jurists who have worked with the law in every day affairs. Whether divorce law, bankruptcy law, property rights disputes, personal injury, criminal matters, business law or other fields; We also need Judges with experience working on every day disputes that affect the daily life of our citizens. There is more to jurisprudence than having the smartest person in the room make the decision.

Hewitt’s question is salient about what ever happened to the demand for an up or down vote?

Politically the Meirs withdrawal helps the Democrat Party. As Hewitt points out Republicans are conceding to the modus operandi of the Democrats in condoning “Borking.”

Just last year we had an election where Supreme Court appointments were an issue. We elected George W Bush who said he would appoint judges who would be strict constructionist of the Constitution. The “Trust Me” argument is valid. The President has made great judicial appointments, an almost perfect record of appointing principled non-activists to the bench. Also consider how well the President knows Harriet Miers, one of his most trusted aides and advisors.

A word about Cronyism – Selecting Harriet Miers (that might also be the case of an appointment of Alberto Gonzales) of course raised the charge of cronyism. For U S Senators to raise that issue borders on hypocritical. Consider that de facto the senior Senator of the President’s political party must agree to every judicial appointment to the Federal District Court in their State. U S Senate rules also provide for “blue slip” policy that has allowed home-state senators who object to a judicial nominee to delay action in the Judiciary Committee by not returning a nominee’s “blue slip” to the committee. Almost every appointee to the Federal District bench is well known by their US Senator in the majority of cases a good friend or political supporter.

In South Dakota consider the appointments of Judge Battey by Senator Pressler, Judges Piersol, Schreier, and Kornmann by Senator Daschle, and even Judge Fred Nichol by Senator McGovern. All were close friends or associates of their Senator. Judge Piersol was Senator Daschle’s attorney during his election recount in 1978. Judge Schreier was Senator Daschle’s hand picked State Democratic Party Chairman and then U S Attorney for South Dakota under Bill Clinton.

It is well established, Circuit Court appointments belong to the Senators, Appellate and Supreme Court Appointments belong to the President. Only in extreme circumstances is this not the case. Quit the Hypocrisy - Cronyism rules!

The President is in a difficult political position. His conundrum is that he will now find it very hard to make a nomination that satisfies many on the right while at the same time avoiding a firestorm. Of course a fight is what the activists want. In the meantime Justice O’Connor will continue to rule on issues important to them – when instead we could have had a steady reliable conservative vote from Harriet Miers. How the President will thread the needle remains to be seen with his nomination.

Why The Right Was Wrong

By Hugh Hewitt

The New York Times

October 28, 2005

Over the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush's nominees deserved an up-or-down decision on the floor of the Senate. Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

Not all critics of Ms. Miers from the right used these tactics, and those who did not will be able to continue on with the project of restoring sanity to the process that went haywire with Judge Bork's rejection in 1987. Conservatives are also fortunate that no Republican senator called for Ms. Miers's withdrawal.

But the Democrats' hand has been strengthened. Voting for or against Ms. Miers would have forced Senate Democrats to articulate a coherent standard for future nominees. Now, the Democrats have free rein.

The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it "worked" with Ms. Miers. A claim of "special circumstances" justifying a filibuster will also be forthcoming. And will other nominees simply pass on the opportunity to walk out in the middle of crossfire? A White House counsel with distinguished credentials was compared to Caligula's horse and Barney the dog on National Review's Web site. George Will denounced as "crude" those evangelicals who thought Ms. Miers's faith was a good indication of character in a nominee and a hopeful sign on issues involving the unborn. She was labeled a crony before lunch on the day of her nomination by scores of commentators. Attacks on her competence within the White House followed immediately. She never had a chance, really.

The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle. The center of the Miers opposition was National Review's blog, The Corner, and the blog ConfirmThem.com, both with sharp-tongued, witty and relentless writers. They unleashed every argument they could find, and the pack that followed them could not be stopped. Even if a senator had a mind to urge hearings and a vote, he had to feel that it would call down on him the verbal wrath of the anti-Miers zealots.

It will be the lasting glory or the lasting shame of The Corner and others involved in driving Ms. Miers from the field, depending on what happens, and not just with the next nominee and his or her votes on the court, but all the nominees that follow, and all the Senate campaigns that will be affected, as well as the presidential race in 2008.

This triumph of the conservative punditocracy will have lasting consequences, and I hope my fears are misplaced. The first returns will come in the decision on parental notification statutes that will be argued before the Supreme Court in late November. Absent a miracle of Senate efficiency, Justice Sandra Day O'Connor will cast one of her last votes on the most important abortion-rights case in a few years. And then the accounting will begin in earnest.

Hugh Hewitt, the writer of HughHewitt.com, is a professor at Chapman University Law School.