The "Plot" Thickens?
Professor Sanford Levinson (who was a visiting prof and taught me "Legal Ethics" back in, I think, the fall of 1991) appears to suggest that behind the Alito nomination is a secret and nefarious agenda -- to find a candidate who would uphold the "supremacy" of the Executive branch. This theory is, apparently, based on some Alito statements about the importance of executive (as well as legislative) intent in interpreting legislation.
His accusation is at once too much and not enough. Of course the President is likely to favor judicial candidates who will understand the importance of upholding (within the Constitution, of course) the president's powers in fighting the war on terror . . . in fact, it' s been Hugh Hewitt's contention all along that the President's resolution to fight the war on terror vigorously prompted his choice of Harriett Miers -- given her intimate knowledge of the stakes in the war on terror and the president powers needed to fight it effectively. Where, then, is the shock in learning that his other nominee for the seat might likewise be sympathetic to executive claims -- again, within the limits of the Constitution?
And even if there were a pro-executive powers agenda underlying the President's Supreme Court picks, what's so disqualifying about a potential justice holding a robust view of executive power? So far, nothing I've seen even remotely suggests that Judge Alito's views are -- as the liberals love to put it -- "out of the mainstream."
Levinson winds up by hoping that Senator Specter will come out against the nomination, writing wistfully, "If he exhibits some backbone, the nomination is in big trouble." But he isn't too optimistic about that possibility, and rightly so.
I was one of the people who opposed efforts to bar Specter from Judiciary's top slot (more on my reasons here). But as I wrote at the time, Let's let him know that we are watching him carefully. And if he doesn't do the job right, let's remove him.
Surely Specter knows that any attempt to scuttle the Alito nomination would end up with many, many Republicans surrounding the castle with pitchforks and fire, demanding his head. He may be arrogant, he may be unpleasant, and his flirtation with "Scottish law" was repugnant. But is he stupid -- that stupid? Surely not.
So Levinson may be wrong to think he's uncovered some secret conspiracy -- but he's right in his skepticism about Specter's willingness to derail the nomination.
His accusation is at once too much and not enough. Of course the President is likely to favor judicial candidates who will understand the importance of upholding (within the Constitution, of course) the president's powers in fighting the war on terror . . . in fact, it' s been Hugh Hewitt's contention all along that the President's resolution to fight the war on terror vigorously prompted his choice of Harriett Miers -- given her intimate knowledge of the stakes in the war on terror and the president powers needed to fight it effectively. Where, then, is the shock in learning that his other nominee for the seat might likewise be sympathetic to executive claims -- again, within the limits of the Constitution?
And even if there were a pro-executive powers agenda underlying the President's Supreme Court picks, what's so disqualifying about a potential justice holding a robust view of executive power? So far, nothing I've seen even remotely suggests that Judge Alito's views are -- as the liberals love to put it -- "out of the mainstream."
Levinson winds up by hoping that Senator Specter will come out against the nomination, writing wistfully, "If he exhibits some backbone, the nomination is in big trouble." But he isn't too optimistic about that possibility, and rightly so.
I was one of the people who opposed efforts to bar Specter from Judiciary's top slot (more on my reasons here). But as I wrote at the time, Let's let him know that we are watching him carefully. And if he doesn't do the job right, let's remove him.
Surely Specter knows that any attempt to scuttle the Alito nomination would end up with many, many Republicans surrounding the castle with pitchforks and fire, demanding his head. He may be arrogant, he may be unpleasant, and his flirtation with "Scottish law" was repugnant. But is he stupid -- that stupid? Surely not.
So Levinson may be wrong to think he's uncovered some secret conspiracy -- but he's right in his skepticism about Specter's willingness to derail the nomination.
posted by Carol Platt Liebau at 4:43 PM
5 Comments:
The selection of Harriet Meirs was an insult to the bar. I don't think there was a nominee in modern times so PROFOUNDLY unsuited for the Supreme Court than Harriet Meirs.
Her selection was cronyism. Plain and simple. Her entire career has been made riding the tailcoats of then Governor, and now President George Walker Bush. Those letters, gushing with love and adulation that she wrote to GW, were grotesque. And I'm being charitable.
Now Alito, wants for nothing, neither in resume, intellectual firepower, writing ability, and conservative bona fides.
Meirs was a DISASTER selection. Now I know that you sub host for Hewitt upon occasion. But don't allow that to colour your judgement about Meirs, or about Hewitt's performance in his last stand defense of the SUPREMELY disqualified Harriet Meirs
Hewitt has made TWO MAJOR MISTAKES since the President's reelection.
1} He supported Arlen Specter's claim to the Chairmanship of the Judiciary, with all the deleterious consequences that have befallen;
2} He went down with the ship defending the selection of the crony, Harriet Meirs.
Don't compound his mistakes by providing a cover for the selection of Meirs. NOTHING can excuse her selection, NOTHING.
This is why folks like Carol , Hugh and many other topblogs are so important. I am just an everyday contractor working on your home, so to speak, yet I am very informed thanks to this multiplex of conservative effort. I am glad to be just small fry swimming in a greater stream.
My choice for SCOTUS was Luttig though Alito was an excellent pick and we should stand up for him. Thank you Carol for being an excellent source!
PS: I agree with Dan, Miers was a miscue, though I would say an honest one. It was to political a choice, not that she wasn't qualified. Personally I am glad she withdrew.
No, Meirs was positively DISqualified, not simply a miscue.
If you had the opportunity to read some of the articles she wrote for the Texas Bar journal, you could not help but conclude that she has problems conveying a coherent thought, and resorts too frequently to the cliche. As a lawyer, and especially as a judge, and most especially as a Supreme Court Justice, your trade is language, and it is a sine qua non that the nominee have the English language completely at her command.
It's part of the job.
Like marksmanship for a soldier, a requirement for entering DELTA, or the SAS. If you want to enter the elite, you had better be completely at ease with putting a bullet on a target. So for the Supreme Court, you have to be able to write persuasively, not just well.
As for Hewitt's defense of Meirs, it had an air of squalor about it. Much of it was predicated upon the conclusion that we couldn't get anyone better through without triggering a fillibuster. Politically the assessment was errant. And as a Constitutional matter, it needlessly transferred too much Presidential discretion to oppositionists in the Senate.
Just review Alito's resume. Former Justice Department official, former U.S. Attorney, 3d Circuit Court Judge for over a decade. His academic record is unimpeachable.
He is clearly, and demonstrably qualified to handle THE toughest legal issues in the country.
And but for Conservatives who raised a hue and cry about Meirs, we never would have had him as a nominee.
Moreover, just think of the last three Republican nominations for the court: Souter, Roberts, Meirs. We weren't becoming more open about putting an originalist up on the court, we were BECOMING MORE STEALTH LIKE, not less.
To be perfectly frank, it was as if we were entering the fricken closet. And that was another thing that escaped the scrutiny of Hewitt. That the GOP up on the Hill desired to dodge a battle is understandable, not excusable mind you, but understandable. But that Hewitt, a law Professor for cryin' out loud lent his support to such cowardly nonsense was simply appalling.
It will take a long time for Hewitt to live that one down for me.
And his entire political assessment has been demonstrated as idiotic by the Alito nomination. We didn't need to go stealth, in fact, WE NEVER needed to go stealth.
Dan M is right: (i) some battles are worth fighting; (ii) Hewitt blew it.
If I were a lawyer, I would be incensed that someone would suggest I wasn't qualified to interpret the constitution. How the hell hard is that? Dan m says Alito has resume, intellectual firepower, writing ability, and conservative bonafides. Huh? My point is that every pundit that can string two words together thinks they are constitutional experts, so why not Meirs? Hey, why not me?
Post a Comment
<< Home