The Senate Committee on the Judiciary is made up of eighteen members – ten Republicans, eight Democrats. They, and their opinions of Harriet Miers, seem to be as follows – the majority first.
Arlen Specter, the chairman of the committee says she needs a crash course in Constitutional law. Ouch!
Jon Kyl, Tom Coburn, and Lindsey Graham have privately expressed concerns about her judicial philosophy. Read this as: “I’m not sure she’s conservative enough.” Add to that list now, Sam Brownback and Jeff Sessions, who have pretty much said, openly, “She’s not conservative enough.” While I doubt they are correct on this point, that’s what they’re saying and those are indications that they will vote “no.”
Orrin Hatch, Mike DeWine, and John Cornyn like Miers. Charles Grassley has not expressed a substantive opinion as of yet. So I’ll lump Grassley in with Hatch, DeWine, and Cornyn because he’s a Republican and should toe the party line.
So of the Republicans on the committee, they are split 6-4 – against confirmation. This is a problem for her nomination, because the majority members should have been reliably expected to vote in Miers’ favor, simply because she was nominated by a President of the same party as they.
The minority members can be reliably expected to be against Miers, again based purely on partisanship.
The Democratic leaders so far against Miers are Patrick Leahy and Herbert Kohl, both of whom are upset that Miers and the White House are not releasing more information and documents regarding Miers’ service as counsel to the President.
I am not sympathetic to these claims, since I think the President is entitled to have an attorney and to get confidential advice from his attorney. By all accounts, Ms. Miers has been an outstanding attorney to the President and both she and her client should fight to keep their communications confidential. But of course the confirmation hearings are hardly about fairness, good legal principles, or what is appropriate or inappropriate to disclose during political review of a nomination. The confirmation hearings are about politics – the politics of abortion, to be exact. So Leahy and Kohl can grandstand all they like about Republicans hiding information, and cast “no” votes based on that and claim that oh, no, abortion never crossed their minds. But we will all know better.
We can expect knee-jerk “no” votes from Ted Kennedy, Joe Biden, and Russ Feingold. That’s a no-brainer prediction. These guys would vote against Martin Luther King, Mother Teresa, or Gandhi if Bush nominated them.
Handicapping the remaining three votes requires brain power, but not much. The votes of Dianne Feinstein, Chuck Schumer, and Richard Durbin will almost certainly hinge on whether Miers can pass her litmus test on whether abortion is a “settled” Constitutional right and whether Miers would vote to keep it that way in a direct challenge to Roe v. Wade. Miers will almost certainly fail this test by refusing to answer those questions. And perhaps she should refuse to answer them, but again, this isn’t about what’s legally fair and appropriate, it’s about the politics of abortion.
So on the minority, it's likely that the Democrats will unanimously vote against her.
That means that Miers will come out of the committee hearings with four votes recommending confirmation and fourteen votes recommending against it. If the judiciary committee is representative of the Senate as a whole, and it more or less is on these sorts of things, based on the voting patterns of the Roberts confirmation, the Senate will reject Harriet Miers’ nomination by a vote of 78-22. Plus or minus three votes.
I don’t blame Miers for fighting on and doing the best she can to get confirmed. But it doesn’t look like it’s going to happen right now. So, it’s time to create a plan “B,” Mr. President.
October 26, 2005
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6 comments:
Thoughtful analysis, but I have to take exception at the characterization that the politics are entirely about a litmus test for abortion. Yes, abortion is a big issue for many on the committee, but speaking with friends who work on these issues for various Democratic U.S. Senators, it is also about civil rights, judicial philosophy, separation of church and state, and fashion sense. Well, maybe not fashion sense.
But to say that all the politics hinge on the abortion issue is, I believe, oversimplifying the issue.
I think we'll have to agree to disagree on this.
If Miers were a) in favor of a very expansive reading of the civil rights acts, b) an open admirer of William Brennan and his "living constitution" theory, c) against displaying the Ten Commandments on public courthouses, but d) openly in favor of overturning Roe v. Wade, do you think that Dianne Feinstein would vote to confirm her?
I don't. While Feinstein might praise Miers for the first two, and probably avoid expressing a strong opinion on the third issue one way or another, the last opinion would be so odious to her that I think it's a safe bet that she would wind up voting "no." You know Feinstein much better than me, but I just can't see her voting for an "overturn-Roe" nominee under any circumstances.
I could see Feinstein going for a "like-the-result-dislike-the-reasoning" sort of nominee. But that's not Miers and it's quite unlikely that Bush would nominate such a person.
It works the other way, too -- Sam Brownback has come close to saying that unless Miers is openly in favor of overturning Roe outright, he will withhold his support. I think it's very arrogant of him to be unwilling to accept the code words about "judicial restraint" and "originalism" that the fundies have been using about that issue for years.
So while I would agree that the other issues you mentioned are important, both to the committee members and the public in general, it really seems to me that the abortion issue is of such overwhelming importance that everything else pales by comparison.
This is off point but I think an appreciable portion of the opposition to Miers is snobbishness. Like most attorneys she did not go to an Ivy League school or sit as a judge. Of course, most federal court judges also went to an Ivy League school. I also wish I had gone to an Ivy League school, but as a practical matter, that was never in the cards.
What Miers did do was practice law, which it seems most justices and judges have never done. Including Roberts, who I doubt ever had to worry about anything but the most esoteric issues for well heeled clients. This is snobbishness against lawyers who do the law as apposed to the privileged elite of lawyers who had the opportunity to only have to think about the law.
I have also heard the criticism that Miers has never thought about constitutional issues. The constitution is supposed to deal with reality, as opposed to a religious office. Who better than a lawyer who has had to deal with that realty all her professional life?
What we are seeing is snobbishness against lawyers who are not a part of the thin elite of rich folks who went from an elite school to an elite job, without ever actually having to practice law as it is commonly practiced.
p.s., I know this was one of the Bush administration’s talking points a few weeks ago, but apparently it had no traction. I am not surprised.
Well, Feinstein did say that abortion was a litmus test for her with regards to the Roberts nomination, so I will give you that. ;-)
However, it looks like it's all a moot point for now.
Brad, I think you've got a good point. Who knows, it could come up again on the next nominee.
Snobs won. I predict that the next one, unless it is Gonzales, will be will of the same elite mold as the rest of them.
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