Pedophile Claims Civil Right to Rape Boys

Here's one of the most disgusting legal defenses I've heard:

A suburban Cleveland man accused of sexually assaulting nine disabled boys told a judge Wednesday that his apartment was a religious sanctuary where smoking marijuana and having sex with children are sacred rituals protected by civil rights laws.

The admitted pedophile offered a surprising defense Wednesday to 74 charges of rape, drugs and pandering obscenity to minors.

Appearing in an Ohio court for a pretrial hearing, Phillip Distasio, 34, of Rocky River, Ohio, said he was a pedophile.

He told the judge, "I'm a pedophile. I've been a pedophile for 20 years. The only reason I'm charged with rape is that no one believes a child can consent to sex. The role of my ministry is to get these cases out of the courtrooms."

"Ohio Man Claims Right To Have Sex With Boys" [via Stop the ACLU]

Wilsons' Lawyer Says It Isn't Over

Here's a statement from Joe Wilson's lawyer:

We have become aware of the communication between Mr. Fitzgerald and Mr. Luskin concerning Karl. Rove's status in the criminal investigation. We have no first-hand knowledge of the reason for the communication or what further developments in the criminal investigation it may signal. While it appears that Mr. Rove will not be called to answer in criminal court for his participation in the wrongful disclosure of Valerie Wilson's classified employment status at the CIA in retaliation against Joe Wilson for questioning the rationale for war in Iraq, that obviously does not end the matter. The day still may come when Mr. Rove and others are called to account in a court of law for their attacks on the Wilsons.

It sounds like a civil case against Karl Rove is in the works. But if Peter Fitzgerald, with the power of a grand jury and hoards of investigators, couldn't indict him I doubt a civil trial will result in much. Also, besides Plame no longer on covert missions (which she didn't do for years prior to Bob Novak mentioning her in a column), the Wilsons have been harmed little. They've done a Vanity Fair feature and best-selling author Joe is the darling of the Bush bashing crowd.

"Statement from Christopher Wolf, attorney for outed CIA officer Valerie Plame Wilson"

Fitzmas is Cancelled

Tom Maguire gives us plenty on Karl Rove not being indicted.

"No Charges Against Rove"

Ginsburg's Cat Nap

And they say Scalia is the funny one. I saw this picture days ago, and I'm still cracking up. Look at Alito's eyes. He must have been thinking, "I joined this hallowed body to work with people like this?"

A justice who realized the embarassing situation she was in would have spouted, "I'm not dead yet!"

"Ginsburg Falls Asleep: Media Pretend Not to Notice"

Lying about an Unprovable Crime

Here's more evidence Scooter Libby is being Martha Stewart'ed: he's being prosecuted for lying about a crime the prosecution can't prove. This from Byron York:

CIA leak prosecutor Patrick Fitzgerald argued at a hearing Friday that, as far as the perjury charges against former Cheney chief of staff Lewis Libby are concerned, it does not matter whether or not Valerie Wilson was a covert CIA agent when she was mentioned in the famous Robert Novak column of July 14, 2003. "We're trying a perjury case," Fitzgerald told Judge Reggie Walton. Even if Plame had never worked for the CIA at all, Fitzgerald continued — even if she had been simply mistaken for a CIA agent — the charges against Libby would still stand. In addition, Fitzgerald said, he does not intend to offer "any proof of actual damage" caused by the disclosure of Wilson's identity.

...

"Does the government intend to introduce any evidence of damage or her status?" [Judge] Walton asked.

"We don't intend to offer any proof of actual damage," Fitzgerald responded, adding that he would have more to say on the subject this week in a sealed filing with the court.

"A CIA Leak Trial Without the CIA Leak" [via JustOneMinute]

Althouse at Rehnquist Conference

I was so tempted to take yesterday off and hear Justice Scalia, but I really need to be able to afford my trips to D.C. and Arizona (less than two weeks away!). Ann Althouse was there, took notes, and let us know that someday speeches from the program will shown on C-SPAN.

"At the Rehnquist Conference"

Alito Filibuster Fails

Sen. John Kerry and his fellow Senate Democrats could only round up 25 votes in their attempted filibuster of Judge Sam Alito's nomination. Nineteen Democrats joined 53 Republicans to end debate and force a confirmation vote. Bravo to Sen. Kohl, and shame on Sen. Feingold.

"Democrats Don't Get Support for Alito Filibuster"

Filibuster Expected to Be Defeated

Despite Sen. Lincoln Chafee, being a typical liberal GOP squish, opposing Judge Alito's nomination to the Supreme Court there are enough votes to stop a Democratic filibuster:

"I am a pro-choice (abortion rights), pro-environment, pro-Bill of Rights Republican and I will be voting against this nomination," said Chafee, a moderate up for re-election in a state that opposed Bush for president in 2000 and 2004.

Chafee's office said, however, the senator would join fellow Republicans and a number of Democrats later on Monday to end a futile effort by Democrats to block Alito, who could move the nation's highest court to the right.

A vote to end a four-day debate was set for 4:30 p.m. EST (1930 GMT) and Republicans had commitments from more than the needed 60 in the 100-member chamber to do so, lawmakers said.

Democrats like Sen. John Kerry and even Barack Obama (who I thought was smarter) will try to filibuster even though they know it won't work. All they'll do is pander to the loud, obnoxious Kosites of their base while continuing to alienate more even-keeled voters. Two years before Presidential primaries we hear Sen. Kerry is full campaign mode. Yeesh! And I'm only easing myself into this fall's elections.

"Alito Headed Toward Confirmation"

Will Marijuana Activist Die in Jail?

Here's a disturbing story that should having people defending marijuana laws contemplating their stance:

Five years after fleeing to Canada to avoid jail, medical marijuana activist Steve Kubby returned here in handcuffs Friday facing an uncertain future and a stint behind bars that his doctor contends might prove a death sentence.

Law enforcement officers whisked Kubby off a commercial jet at San Francisco International Airport on Thursday evening, and friends said he soon began to feel the effects of his rare form of adrenal cancer while in custody.

"I got a call from Steve from jail, and he said he was suffering," said Dale Gieringer, director of California NORML, a cannabis advocacy group. "It doesn't have to work this way."

Several physicians who have examined Kubby, a former Libertarian candidate for governor and a driving force behind California's victorious 1996 medical marijuana initiative, contend the drug blunts the worst symptoms of his cancer, which can be fatal.

Kubby, who last week exhausted his final appeals to remain in Canada, had expected to voluntarily surrender to authorities in Auburn, the Placer County seat, after a court hearing scheduled for Tuesday.

I'm not jumping gung-ho into the "legalize drugs" debate. Let's face a fact: marijuana's image has entered our culture more than even when our hippie parents smoked in the 60s. I haven't seen "reefer madness" plague the nation. Steve Kubby needs his marijuana for his health. My common sense tells me this is quite different from selling the stuff or trying to get others hooked on the high.

"Medical Marijuana Activist Returns to State, Is Arrested"

Rendell Criticizes Senate Democrats

Judge Alito's Supreme Court nomination passed the Senate Judicial Committee on a party line 10-8 vote. Alito wasn't damaged during the confirmation hearings. In fact, he was hardly scratched. The same can't be said for Democrats on the committee. Sen. Kennedy looked like a bloated buffoon. Sen. Biden hated Princeton then loved it. Sen. Feingold decided to be obsessed with Alito and Vanguard and who helped prep him for his hearing. Before the vote he went so far as to declare [emphasis mine]:

Judge Alito’s record and his testimony have led me to conclude that his impulse to defer to the executive branch would make him a dangerous addition to the Supreme Court at a time when cases involving executive overreaching in the name of fighting terrorism are likely to be such an important part of the Court’s work.

Guess what's also dangerous? A Senator pushing laws that limit political speech while claiming he's protecting civil rights.

Unlike Judicial Committee Democrats, Pennsylvania governor Ed Rendell supports Alito and criticized Sens. Kennedy, Leahy, Feingold, Durbin, Biden and the other Democrats:

I Disagree With A Lot Of His Positions On Cases, But I Think The Tests Should Always Be One Party Wins The Election. As Long As The Supreme Court Justice Is Appointed Who Has High Academic Qualifications, Significant Integrity And Judge Alito Certainly Does, We Should Confirm Him Regardless Of Our Disagreement On The Way He May Interpret One Aspect Of The Law. I Think We've Fallen Into Such Partisanship In D.C., Not Just In This But In So Many Things, That It's In Some Way Ways Tearing The Country Apart.

...

I Wasn't Pleased At The Nitpicking. I Think We Need To Go Back To The Days [When] One Party Wins. No One Fought Harder For John Kerry Than I Did ... But [President Bush] Won The Election, And As Long As They Give Us Qualified Candidates ... Sam Alito, Unanimously Recommended By The American Bar Association, A Qualified Judge.

"In Case You Missed It: Former DNC Chairman, Governor Ed Rendell (D-PA) Supports Judge Alito"

Political Speech Case Sent Back to Lower Court

Ann Althouse comments on the Supreme Court considering another aspect of the McCain-Feingold free speech restriction campaign finance law. SCOTUSblog reports:

The Supreme Court ruled on Monday, without dissent, that it has not barred all challenges to actual operation in practice of federal campaign finance restrictions on political advertising. It ordered a lower court to reconsider an "as-applied" challenge by an anti-abortion group, Wisconsin Right to Life Inc. The unsigned opinion, only two and a half pages in length, was announced by Chief Justice John G. Roberts, Jr. It ordered a three-judge District Court to consider the merits of the organization's complaint.

The decision came in a case argued just last Tuesday -- Wisconsin Right to Life v. Federal Election Commission (04-1581). The anti-abortion organization contends that the new federal campaign finance law's restrictions on political ads close to election-time is unconstitutional when it is applied to grass-roots lobbying efforts.

A federal court will have to determine the difference between legal "grass-roots" speech and "electioneering" speech. I can't wait to see what mental sommersaults take place along the way back to the Supreme Court. The Law of Unintended Consequences has struck again. Obviously fault lies with Sens. McCain and Feingold, but also chastise President Bush who signed a bill he cynically thought would be kicked aside by the courts as unconstitutional.

"About Those Issue Ads."

Wife Crying: "PR Stunt"

Kos thinks Judge Sam Alito's wife cried on que. The most cynical man in America retains his title.

"Political Theater" [via Right Wing News]

Mum on Alito Hearings

I'm not watching the Alito hearings today. That's because it's all opening speeches. I pretty much know Democrats will attack the nominee's integrity and claim he's a rabid extremist. I also know Republicans will praise Alito's integrity, experience, and judicial approach. There's little news today unless someone makes some truly bizarre statement. I will be waiting to see how Alito holds himself to questions. Then we'll have some news. If you want some running commentary Professor Bainbridge is toiling away.

Dems Alito Attack Upended

Democrats told Drudge Judge Alito would be toast by bringing up his association with Concerned Alumni of Princeton. Alito will certainly be questioned, but Democrats won't have a star witness testifying:

A key witness to the character of Judge Samuel A. Alito has been removed from the Senate Judiciary Committee Democrats' testimony list, FOXNews.com has learned.

Stephen R. Dujack, editor of The Environmental Forum magazine and fellow Princeton University alumnus, was expected to testify about a controversial student organization that counted Alito as a member. Dujack confirmed to FOXNews.com late Friday that he was no longer testifying, but said he could not elaborate.

It probably has to do with Dujack writing in 2003 that animals are "[l]ike the victims of the Holocaust." He went on to write that "[c]omparisons to the Holocaust are not only appropriate but inescapable." Joel Geiderman in The Jewish Journal of Greater Los Angeles chided Dujack:

While it is tempting to compare all acts that we may individually find abhorrent to the Holocaust and while the event itself has become the benchmark for abject evil in the world, wholesale use of the term desecrates the memory of what actually happened during those terrible years.

Whatever the arguments are for or against animal slaughter for food, it is simply not the Holocaust. Dujack may as well call it the Crimean War.

Why can’t PETA and Dujack let the victims of the Holocaust rest in peace and leave them out of it? How do the Jewish people (as usual) get dragged into the middle of this argument?

Democrats didn't want to diminish their attack on Alito by having to defend a loon. Instead of a witness we'll be stuck with Sen. Ted Kennedy droning from his prepared remarks.

"Democrats Hit Possible Snag Ahead of Alito Hearings" [via Viking Pundit]

[Added to Mudville Gazette's open post.]

UPDATE: It gets worse for Senate Judicial Committee Democrats:

In an unusual move, several federal appeals court judges intend to testify as Republican-sponsored witnesses next week at Senate confirmation hearings for their fellow jurist, Supreme Court nominee Samuel Alito.

ADVERTISEMENT

"They will testify about his approach to judging, as to whether he has an agenda, whether he is ideological, whether he pushes any specific point of view," Sen. Arlen Specter, R-Pa., said Friday. Specter will wield the chairman's gavel at the Judiciary Committee hearings.

"GOP List Includes Alito's Fellow Jurists" [via Captain's Quarters]

Creative Commons Fund Drive

Our digital age means evolving law. Part of that are more flexible rules on how intellectual property can and can't be used. That's where Creative Commons comes in. As they say on their website:

We use private rights to create public goods: creative works set free for certain uses. Like the free software and open-source movements, our ends are cooperative and community-minded, but our means are voluntary and libertarian. We work to offer creators a best-of-both-worlds way to protect their works while encouraging certain uses of them — to declare "some rights reserved."

Thus, a single goal unites Creative Commons' current and future projects: to build a layer of reasonable, flexible copyright in the face of increasingly restrictive default rules.

I don't use any of their licenses--too damn lazy. But I know I've used content on TAM that is under CC licenses. They're having a year-end fundraising drive. I gave them a few bucks, you should too.

[via digg]

Return to Rivera Beach

In October, I wrote briefly about how city officials in Rivera Beach, FL want to kick out the lower and middle class residents to build high-end housing and marina. Today, the LA Times reports from the scene.

"An Eminent Domain High Tide" [via California Yankee]

When the Winners Lose and the Losers Win

The despised Kelo ruling from this past summer has not forced holdout New London, CT out of their homes.

"This lawsuit put a chill on the development of the whole 90 acres, no doubt in my mind," said Thomas J. Londregan, the city's director of law. "Any developer knew that whatever they did would most likely be appealed to the courts."

...

If any construction begins soon, it will happen away from the area where the holdouts remain, said Marty Jones, president of Corcoran Jennison, which has been under contract on the project since 1999.

"We need to have some positive things happening so that every lender and investor I go to doesn't say, 'I want to be 100 miles away from here,' " Ms. Jones said. "Eminent domain in Fort Trumbull has been on the front page of every newspaper in the country, and it has not put New London in the most positive light."

"Eminent Domain Project at Standstill Despite Ruling" [via Althouse]

Shocking! Alito Opposes Abortion

Let's think a little for a moment: the party that (for the most part) opposes the killing of the unborn controls the White House and Capitol Hill. Should we be surprised that the President's nominee to the Supreme Court would also oppose abortion? If we want to talk about precedents then Judge Alito's stance on abortion should not prevent him from getting onto the court. Both Justices Breyer and Ginsberg both support abortion rights. They both easily passed the GOP-controlled Senate. But the Left now has their excuse to spend all the money they've saved up for a Supreme Court fight.

Conservatives should love Alito even more with the release of his job application from the 1980s:

"I believe very strongly in limited government, federalism, free enterprise, the supremacy of the elected branches of government, the need for a strong defense and effective law enforcement, and the legitimacy of a government role in protecting traditional values," he wrote.
"In the field of law, I disagree strenuously with the usurpation by the judiciary of decision-making authority that should be exercised by the branches of government responsible to the electorate," he added.
The document also provides the clearest picture to date of Mr. Alito's intellectual development as a conservative.
"When I first became interested in government and politics during the 1960s, the greatest influences on my views were the writings of William F. Buckley Jr., the National Review, and Barry Goldwater's 1964 campaign," he said. "In college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions, particularly in the areas of criminal procedure, the Establishment Clause, and reapportionment."

Alito is the nominee many conservatives really wanted to see. He grew up with the rise of the conservative movement and has been influenced by the right people (Buckley, Goldwater, Reagan, etc.). He's a product of the modern conservative movement.

"Alito Rejected Abortion as a Right" [via Brothers Judd]

Conservative Blacks Blast Journal Sentinel

Black conservative group Project 21 has issued a press release blasting the Milwaukee Journal Sentinel for their asterisk editorial:

Members of the black leadership network Project 21 are condemning a Milwaukee Journal Sentinel editorial in which United States Supreme Court Associate Justice Clarence Thomas is said to need as "asterisk" next to his name with regard to his race because he "does not represent the views of mainstream black America."

...

Murdock added: "Justice Thomas is not on the Court to represent 'mainstream black America' any more than Justice Antonin Scalia is supposed to stick up for Americans of Italian descent or Justice Ruth Bader Ginsburg is supposed to be the Court's voice of American Jewry. Is there a mainstream black view on so-called 'right to die' cases? What is the proper Jewish position on the Endangered Species Act's impact on property rights? Who knows? Justice Thomas represents the conservative judicial philosophy of the president who appointed him. So far, he is doing that quite well. If liberals want to affect the philosophical tone of the Supreme Court, they should consider winning the White House."

"Black Activists Denounce Racialist Milwaukee Newspaper Editorial"

So?

Marcus notes the Journal Sentinel editorial board doesn't know much about the structure of the federal government:

The SCOTUS is not a representative body, it is a court. The SCOTUS is not elected therefore is inherently not representative of the ethnic makeup of our nation. The SCOTUS was designed to be above the political fray (a diminishing facet of the SCOTUS) and in fact it can be argued the SCOTUS was not to be representative. The idea of the SCOTUS was to interpret the law, to negotiate between contract disputants, to interpret the constitution, and to determine the constitutionality of statutory law. That is the SCOTUS tries to determine the truth, and truth is above politics and representative democracy.

The court isn't about making sure blacks have a say, or women, or whites, or whatever group out there. The court is about being the third branch of government that restrains the power of the other two. There isn't a "black way" or a "female way" or a "white way" to interpret law. There are intellectual schools of thought, but they're just that, intellectual. Race, sex, or religion has no bearing. Whether one in a conservative, liberal, or radical doesn't depend on skin color, sex, or religion. Clarence Thomas is a black man. That has as much bearing on his rulings as being Italian has on Antonin Scalia's. Both can be and are conservatives. That doesn't make them any lesser members of their respective races. The Journal Sentinel can't understand that. To them skin color and gender determine ideology.

"Splat!"

An Asterisk for Thomas

Day 2 of the Alito nomination and some Lefties look like fools. The Milwaukee Journal Sentinel editorial board played the race card today:

Another minus is that the nomination lessens the court's diversity. O'Connor herself had expressed the desire that her successor be a woman. O'Connor seems to have grown wiser about diversity as a result of her Supreme Court experience. She came to see the virtues of having a court that looks like America - doubtless a big reason she softened her opposition to affirmative action in recent years.

In losing a woman, the court with Alito would feature seven white men, one white woman and a black man, who deserves an asterisk because he arguably does not represent the views of mainstream black America.

In the Journal Sentinel's limited Leftist mindset only liberal blacks can represent blacks' interests. There's no possibility Justice Thomas could uphold the rights of blacks because *shiver* he's a conservative who doesn't make law from the bench. The paper engages in typical groupthink. In their minds only liberal blacks can represent blacks; only liberal women can represent women; only Indians can represent Indians; etc. If you're a conservative black you're a freak of nature. That's not treating people as individuals. It's lumping them together based on gender or race. Hey, they have words to describe that; they're "sexism" and "racism."

Imagine if this weblog or the Wall Street Journal editorial page wrote, "In losing a woman, the court with Alito would feature seven white men, one white woman, who deserves an asterisk because she arguably does not represent the views of mainstream black America, and a black man." We'd receive heaps of scorn. But if you're a Leftist you think you can get away with it.

Charlie Sykes is calling Ricardo Pimentel and the Journal Sentinel editorial board "racists." If the name fits...

In an unintentional bit of irony by the paper they worry about the Alito nomination dividing the country. It won't divide people as much as the racist rhetoric the paper uses.

"A Nomination that Will Divide"

UPDATE: As Charlie Sykes put it the asterisk "goes national." With more reaction here.

SCOTUS Poll

TAM readers, what do you think of the Alito nomination? Hugh Hewitt, who isn't bashing his fellow conservatives, is running a poll. Take it. Then you'll be able to see what other TAM readers think.

DNC Swings at Alito and Misses

It's not a good start for the Alito attack machine at Howard Dean's DNC when Chris Matthews goes on television and bashes your lousy brand of politics. Matthews went on MSNBC to excoriate a DNC fact sheet with the first item being how Alito failed to win convictions over New Jersey mobsters. Matthews decried the Italian bashing implicit in accusation:

They shouldn’t go after ethnicity. As a prosecutor, a judge, a yale law grad. I don’t understand this kind of politics. Unless they have someone who's not on the top of 20 items. The guy being an Italian American not nail a conviction in 17 years ago? Interesting.

Matthews doesn't understand the bad politics at the DNC? How about the inept loudmouth running the show?

Wizbang has Matthews' appearance courtesy of The Political Teen.

But wait! There's more! Enterprising RedStaters looked through the original MS Word document and found what DNCers were working on it.

What would Einstein make of this?

"Alito Smear Document Came Directly From DNC"

Schumer's Perpetual Talking Points

Someone hit the repeat button on Sen. Charles Schumer's iPod:

“Dividing the country”. Isn’t that the same exact thing he said about Justice Roberts AND Harriet Miers? Whoever is typing up the talking points at the DNC needs a crash course on how not to make the memos sound a like.

The Rosa Parks link was a tasteless touch. Nothing says politician like trying to score political points with an unrelated dead person.

"Schumer Compares Rosa Parks to Supreme Court (VIDEO)"

Kennedy's Pendulum

The GOP has a side-by-side comparison of Sen. Kennedy's evolving (dare one say "growing"?) opinion of Judge Alito. In the press release Kennedy went on to say:

After insisting that Harriet Miers shouldn't even get a hearing because she couldn't prove she was extreme enough, the far right has now forced the President to choose a nominee that they think has views as extreme as their own.

This only makes sense only if Alito was ideologically in synch with Kennedy when the Senate confirmed him. In 1990 President George H.W. Bush nominated Alito. He certainly wasn't a Kennedy-liberal. So it wouldn't be a surprise that Alito wasn't a liberal on the court.

Kennedy goes on saying:

After stating that he believed in a diverse bench, President Bush took the nation a step backwards today. Apparently, he couldn't find a woman or minority or a mainstream nominee that meets the litmus tests of the right wing, and instead put forth a nominee with a troubling record on the rights and freedoms important to America's families.

Without saying it, Kennedy demands quotas on the court. And he has the gall to talk about "litmus test of the right wing."

Alito Nominated

Hooray! President Bush got his act together. Appeals Court Judge Samuel Alito has been nominated to replace Sandra Day O'Connor. The conservative spin is Alito has a first-rate mind is more qualified than Chief Justice Roberts. In a blast e-mail Ed Whelan said, " By any objective criteria, it is doubtful that there is anyone now or in recent decades (yes, not even Chief Justice Roberts) whose experience and qualifications better prepare him for the Supreme Court."

The Left and their allies in the MSM has already jumped on Alito's dissent in the Casey case. (Hmm... was the AP spoonfed this story from pro-abortionists as easily as I was fed favorable Alito quotes?) He thought the Pennsylvania legislature had the power to make wives tell (but not require consent from) their husbands they're having an abortion. He wrote,

The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion.

Justice Reinquist later cited the dissent in his dissent when the high court ruled on Casey.

Sen. Harry Reid wondered "if the man replacing Miers is too radical for the American people." How radical could he be if the Senate unanimously confirmed him? Or has he "grown" more conservative while on the bench? If so, it would be one of the first instances in modern legal history. Sen. Ted Kennedy wondered if Alito was "mainstream." GOP staffers passed out a quote of Kennedy saying, "You have obviously had a very distinguished record, and I certainly commend you for long service in the public interest. I think it is a very commendable career and I am sure you will have a successful one as a judge."

Michelle Malkin sums up the Right's pleasure in a serious nomination writing simply, "Experienced. Well-thought-of by conservative constitutional scholars. Not a diversity/crony pick. Young. This is a nominee the Right can get behind." James Joyner thinks Alito will have a semi-smooth sail through the Senate. I don't see that. Too much money on the Right and Left are just waiting to be unleashed in opposition research and tv commercials.

"Bush Nominates Alito for Supreme Court"

"This Time, Liberals Voice Opposition"

Miers Withdraws

No more Harriet Miers to kick around:

Under withering attack from conservatives, President Bush ended his push to put loyalist Harriet Miers on the Supreme Court Thursday and promised a quick replacement. Democrats accused him of bowing to the "radical right wing of the Republican Party."

The White House said Miers had withdrawn her name because of a bipartisan effort in Congress to gain access to internal documents related to her role as counsel to the president. But politics played a larger role: Bush's conservative backers had doubts about her ideological purity, and Democrats had little incentive to help the nominee or the embattled GOP president.

No comments until I get back from the bookstore tonight. I can say Charles Krauthammer got the exit strategy right.

"Miers Withdraws Under Mounting Criticism"

UPDATE: The name game for a replacement has already started. Diane Sykes' name is again floating around.

Organizing Against Miers

David Frum started up Americans for Better Justice to oppose the Harriet Miers nomination. Mona Charen, Linda Chavez, and Virginia Postrel are all on board.

They already have a commercial. The tone is good. They're not bashing the President or Miers supporters. This has the potential of really being a full-blown conservative schism. A lot will up to how Miers supporters like Hugh Hewitt respond. It's not a good sign when Hewitt writes,

The echo-chamber effect that plagued the Michael Moore Democrats last year may now be at work among conservative intellectuals who think they are seeing a rising, when in fact they are witnessing the equivalent of a cyber faculty meeting meltdown over a tenure decision, on steroids.

Pejman Yousefzadeh has jumped off the fence and opposes Miers:

So even if Harriet Miers passes through the prelude, what do we have? We have a very smart litigator who would be--and was--a very good managing partner at a large law firm who has not thought seriously about Constitutional law, issues of statutory jurisprudence or an overarching theory of jurisprudence. She will cram for her immediate hurdle before the Senate Judiciary Committee. But that is not enough to prepare her for a lifetime on the Court. For John Roberts, the Senate hearings were an occasion to show clearly to the very few who remained foolish enough to doubt him his absolute and awe-inspiring mastery of Constitutional law. For Harriet Miers, they would be an occasion to merely attain some semblance of respectability after an underwhelming rollout--underwhelming in large part because of her failure to impress even those whose own legal training is shallow at best.

And this is where I get off the bus. I don't want a Justice who is merely better than the mediocre. I want excellence. I want someone who lives and breathes the issues the Court grapples with and while Harriet Miers is an excellent lawyer, she does not fit the bill on this score.

UPDATE: Stephen Taylor takes Hewitt to task for his characterization of the anti-Miers crowd as East Coast elites.

Miers Affirmatively for Affirmative Action

When a paper trail is lacking, actions are as loud as words when it comes to Supreme Court nominee Harriet Miers. Defenders have mentioned how she fought to stop the American Bar Association from having a pro-abortion position. They argue that this is a sign she'd vote to overturn Roe v. Wade. In the Washington Post we learn she had no problems with racial and gender quotas in hiring of lawyers and bar association leadership positions:

Two years before Miers became the president, the state bar had decided to remedy that situation by setting aside four board of directors seats for women and minorities. Those members are appointed by the president but have the same voting privileges as those who ran for office.

The policy, which is still in place today, came up for discussion during Miers's presidency, board minutes show. The board made minor changes, but kept the preferences intact.

Miers critic and law professor John Yoo called Miers' actions are "another worrying sign that her real views on the kind of issues she'll decide on the Supreme Court are not as conservative as President Bush suggests."

If her pro-life actions are indicative of how she'll vote on abortion cases it's not a stretch to think she'll be on the liberal, pro-affirmative action side of the court. The White House spins the news by saying Miers' pursuit of diversity was a "private-sector initiative to increase diversity, which is not the same thing as a government mandate of quotas." The problem with this spin is state bar associations license lawyers. In order to practice law in Texas you must be a member of the bar association. It's a government-granted monopoly. It's a stretch to call this a "private-sector initiative." Besides since Miers has no written record we can dig through we have to use other information to divine how she'll tackle important legal issues like affirmative action. The White House has put themselves in this corner by picking the ultimate stealth candidate.

Captain Ed admires Miers' attempt to redress generations of racial discrimination and doesn't think she's a "Quota Queen." Stephen Bainbridge, the best of the blogospheric Miers critics pulls together a George Will piece and counters Hugh Hewitt's criticism of it.

"Miers Backed Race, Sex Set-Asides"

Defending Miers to Webloggers

The RNC organized a conference call of webloggers hosted by RNC Communications Director Jim Dyke and former Texas Supreme Court Justice Craig Enoch defending Harriet Miers. From reading Mark Coffey's account I'm not swayed. Agnostic I'll remain. The problem is anecdotal accounts don't cut it for me. President Bush wants conservatives to trust him that Miers will be a justice in the Scalia/Thomas mold. We have to trust Bush's judgement without reading or hearing much from the nominee herself. I don't trust Bush on this. I trust Craig Enoch even less. I know nothing about the man. How much did he work with Miers professionally? I don't know. All I know is he told webloggers (using Coffey's words), "Miers understands the roles of judges in a way that is compatible with a conservative approach (i.e., not an activist, legislative bench)." No support except his memory.

What would I need to get off my cautious fence? I would like to see some papers, essays, lecture notes, speeches, or something that illustrates her constitutional thinking. The White House has had 18 days to produce something. To say I'm disappointed is an understatement. This doesn't means only a law professor or judge would meet my criteria. Getting into top-notch law reviews isn't what I'm expecting. I just want evidence that Miers has thought about constitutional issues deeply and can explicate a conservative judicial philosophy.

"Blogger Conference Call: Craig Enoch and Jim Dyke"

Bush Defends; Paper Asks for Miers Withdrawal

It's been 17 days since President Bush nominated Harriet Miers to the Supreme Court. Critics are still waiting for some evidence that she would be a justice in the mold of Scalia or Thomas. At least we have a questionnaire to go through. Today, the President defended Miers by saying she is a "competent, strong, capable woman who shares the same judicial philosophy that I share." He also mentioned her real-world experience would give her a "fresh outlook." (That is Miers defenders' strongest argument.) What was fresh was no mention of her religion.

I don't want to know if she thinks abortion is bad. I want to know if she thinks Roe v. Wade is bad law. Thinking that doesn't mean one is pro-life. One can think Roe is bad law and still support a woman's right to an abortion. Overturning Roe simply means the question of legalized abortion would be returned to the states. So Miers can support a pro-life constitutional amendment all she wants. That gives me no assurance that she would overturn Roe.

In related news, the Seattle Post-Intelligencer, today, asked President Bush to withdraw the Miers nomination writing,

It's not that there is so much wrong with Miers, as it is that there is not enough right about her.

Has she so much as handled a case involving the Constitution, written an article on a constitutional issue or taught constitutional law? In what memorable public debates on constitutional law has she partaken?

"Bush: Miers Will Reassure Senate Skeptics"

The Awful Defense of Miers

John Fund brought up an incident of then White House staff secretary Harriet Miers complaining about the 2001 Presidential Christmas message being too Christian. Ned Ryun, the author of the original message told Fund, "Miers purposefully sought to dilute the Christianity of the message, thus revealing to me at least a willingness to compromise unnecessarily without outside pressure."

Now, the story may or may not be accurate. This superficial attack on Miers works because the White House has offered nothing but "trust Bush," "Miers is an evangelical Christian," and "Miers has real-world experience." She's such a stealth candidate her defenders can't even offer up a real defense. I want to continue to give Miers the benefit of the doubt, The White House has been given plenty of time to dig through her past and find a document, a speech, or an example of Miers being in the Scalia or Thomas mold. They haven't which disturbs me.

"From Worse to 'Sweet Jesus!'" [via No Runny Eggs]

UPDATE: The White House wants to step into the Wayback Machine and try Miers relaunch:

Get ready for a whole new Harriet. After a disastrous two weeks, White House officials say they hope to relaunch the nomination of Harriet Miers for the Supreme Court by moving from what they call a "biographical phase" to an "accomplishment phase." In other words, stop debating her religion and personality and start focusing on her résumé as a pioneering female lawyer of the Southwest. "We got a little wrapped around the axle," an exhausted White House official said. "As the focus becomes less on who she's not and more on who she is, that's a better place to be."

So, as the White House counsel begins her formal prep sessions this week for a confirmation hearing that's likely to start in early November, President Bush will hold a photo op with former chief justices of the Texas Supreme Court who will testify to Miers' qualifications and legal mind. The White House's 20-person "confirmation team" will line up news conferences, opinion pieces and letters to the editor by professors and former colleagues who can talk about Miers' experience dealing with such real-world issues as the Voting Rights Act when she was a Dallas city council member and Native American tribal sovereignty when she was chairwoman of the Texas Lottery Commission.

How this will show Miers to be in the Scalia/Thomas mold is beyond me.

"Why They Can't Hit The Right Note" [via Captain Ed]

"Borking" Miers

Hugh Hewitt accuses Tucker Carlson (and I presume many other Miers critics) of "borking." Uh, no.

Along with his "Bos-Wash Axis of Elitism" Hewitt is raising the rhetorical level that could cause a real conservative schism. He should tone it down. We're still friends even if we disagree on one issue.

[via Galley Slaves]

Miers Sounds Like O'Connor

It's been 10 days since President Bush nominated Harriet Miers. Agnostics like me are still waiting for something, anything positive about the woman. The White House has had plenty of time to offer up an argument beyond "trust us" and "she has real-world experience." (I have real-world experience. Does that make me qualified for the Supreme Court?) The Hotline is reporting that Republican activists are working behind the scenes to "derail Harriet Miers' nomination by pressuring allies of the White House to drop their support." Charlie Sykes thinks this might be a "turning point." Until someone publically switches their support for Miers or a conservative Senator announces they will vote against Miers (won't happen until her confirmation hearings) the White House has no reason to dump Miers.

Now, that bit of Miers' testimony [PDF] where she talks about the Federalist Society, the NAACP, and some group called the Progessive Voters League screams of O'Connor II. She shunned the Federalist Society because they are too "politically charged," but doesn't think the NAACP is. It reminds me of O'Connor in the Michigan law school affirmative action case where she wrote,

Access to legal education (and thus the legal profession) must be inclusive of talented individuals of every race and ethnicity, so that all members of our heterogeneous society may participate in the educational institutions that provide the training and education necessary to succeed in America.

That led her to be swing vote allowing racial preferences in law school admissions.

"GOP v. Miers"

UPDATE: Andy McCarthy wonders how Miers will get out of the Senate Judiciary Committee. Assuming all the Democrats vote against her just one Republican is needed to not recommend her.

Why Miers was Picked

Today, President Bush told reporters,

People are interested to know why I picked Harriet Miers. They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. And part of Harriet Miers' life is her religion.

Does Bush mean to say one of the reasons he picked Miers is because of her religion? Was their a religious test? I'm on the record as not caring about a potential justice's religious beliefs. For me, judicial and political philosophy trumps religion.

We learned from James Dobson today that Miers wasn't the President's first choice.

Some of the other candidates who had been on that short list, and that many conservatives are now upset about were highly qualified individuals that had been passed over. Well, what Karl told me is that some of those individuals took themselves off that list and they would not allow their names to be considered, because the process has become so vicious and so vitriolic and so bitter, that they didn’t want to subject themselves or the members of their families to it.

So, even today, many conservatives and many of ‘em friends of mine, are being interviewed on talk shows and national television programs. And they’re saying, “Why didn’t the President appoint so-and-so? He or she would have been great. They had a wonderful judicial record. They would have been the kind of person we’ve been hoping and working and praying for to be on the Court. Well, it very well may be that those individuals didn’t want to be appointed.

Bush was insistent that a women be chosen. When other, more qualified women declined to run the Senate Judiciary gauntlet he stuck to the female criteria instead of finding a more qualified man. It would be politically more difficult to get confirmed, but many conservatives relished a fight. Bush's mistake was being so insistent on choosing a woman that he tossed qualifications aside.

Dobson still hasn't come clean. He told his listeners, "Karl Rove had shared with me her judicial philosophy which was consistent with the promises that President Bush had made when he was campaigning." What did Rove tell Dobson about Miers' judicial philosophy? All of us who will live under Miers' rulings should know her thinking process.

"Bush: Miers' Religion Key Part of Her Life"

Dobson Speaks

James Dobson says Karl Rove didn't promise him Harriet Miers would overturn Roe if she got on the Supreme Court. "Karl Rove didn't tell me anything about the way Harriet Miers would vote on cases that may come before the Supreme Court." So what did Dobson mean when he told his radio audience, "When you know some of the things that I know, that I probably shouldn't know, you will understand why I have said -- with fear and trepidation -- that I believe Harriet Miers will be a good justice"? What does he know that the rest of us conservatives don't?

"Miers Supporter Says White House Made No Promises"

Polling Webloggers on Miers

John Hawkins polled some right-wing webloggers to gauge Miers opinion. A plurality (49%) think Miers was a "bad or terrible" pick. However, there are deep divisions on whether President Bush should continue to support her or if GOP Senators should confirm her. What this tells me is the right-wing blogosphere understands that the politics of the present is complicated. Many aren't happy with the pick. Dumping her now could be politically damaging, but letting her onto the Court could cause long-term repercussions. All this makes her confirmation hearings very important. Her responses to questioning Senators (when they're not making long-winded speeches) will allow conservatives to decide if they really want a war with the President.

"Polling Right-Of-Center Bloggers On The Harriet Miers Nomination" [via Kapitalismo]

A Miers Monday

Carol Platt Liebau has been trying to keep conservatives on a even keel with the Miers nomination. She understands the criticism (something the White House is failing at) but wants a fuller understanding of Miers to come out.

Today, John Fund writes extensively about Miers non-church, Texas past (we've gotten enough of that from her White House spinners). What he found is a woman who ended up voting liberally on tax issues and airport deregulation.

I'm still waiting for James Dobson to tell us "Some of what I know [about Miers] I am not at liberty to talk about." A Focus on the Family official told the Rocky Mountain News, "I don't think there's any big bombshell that the White House laid on some, but didn't lay on others. There's nothing dealing with how she might rule on any issue, that's for sure." Then Dobson is free to fill us in, or Sen. Specter is going to tick off a lot of people by asking him to testify.

"Reasons to 'Wait and Hear'"

Miers Voted for Reagan

A Drudge Report "Flash":

MIERS VOTED FOR REAGAN IN '84
Fri Oct 07 2005 17:24:18 ET

**Exclusive**

The DRUDGE REPORT has learned from a senior official on Harriet Miers’ confirmation team that her political evolution began in 1984 during the Reagan revolution when she voted to reelect President Ronald Reagan.

DRUDGE sources have also uncovered Miers’ Dallas County voting file which reveals she voted in the 1988 Republican primary and also in that year’s Republican primary run-off. A senior official also revealed that Miers voted for George H.W. Bush who went on to win the ’88 Texas primary with 64 percent of the vote.

Earlier in the week controversy erupted in conservative circles when it was learned Miers had made $3,000 worth of campaign donations in 1988 to Democrats including Al Gore.

One Republican strategist said, “As more and more information comes out about Harriet Miers the more our people will understand why the President made the choice he did. Clearly more information is needed about Ms. Miers, but the information we’ve gotten so far is a significant step in the right direction and we’ve come a long way since Monday.”

Developing...

This a good sign. Miers supporting Reagan is a big plus. But the Republican strategist is wrong by saying "we’ve come a long way since Monday." This is a start, and something that should have come out Tuesday afternoon. At least the White House knows the problem.

Miers Sounded Like O'Connor

A commenter brought this Knight-Ridder story to my attention:

In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed that the city should divest its South African financial holdings and work to boost economic development in poor and minority areas. She also said she "wouldn't belong to the Federalist Society" or other "politically charged" groups because they "seem to color your view one way or another."

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

The story went on to say:

Miers agreed that there were too few minorities on the council, and that increasing the number of single-member districts - thus redrawing district lines - would be one way to change that. She said the structure needed to "encourage additional African-American, Mexican-American representation on the council."

She also said that as "one of the ingredients" in remaking the council, a racial balance would be important. Miers was careful not to endorse the idea that race should be the sole or even primary focus on redistricting efforts, saying at one point that "while race is an issue, you have economic diversity, which is really the crux" of the problem.

"To be representative, you've got to deal with more than race," she said.

This sounds a lot like Sandra Day O'Connor. Not reassuring. I have a few questions for Miers: Do you think only blacks and hispanics can best represent their respective races in political offices? Would you treat the Constitution as a color-blind document? What role does pragmatism play in a relatively permanent document like the Constitution? Or do you consider the Constitution to be a "living document?"

Beldar has done a great job defending Miers' nomination. The crux of his argument is she adds "different kinds of smarts to the Court." He lists her accomplished work experience. Great, such perspective would be useful, but none of this displays her judicial philosophy. Going to church, running a big law firm, being on the Texas Lottery Commission doesn't inform us about what she thinks the proper role of government and the courts are. Even if I assume Miers is smarter than all the Justices put together if she's a constitutional liberal she shouldn't be confirmed. My problem with her is we know too little. It's been four days since President Bush announced Miers as his nominee. The White House still hasn't come up with papers or a record of some sort to easy conservatives' concerns. The University of Michigan has done more with some documents collected (via Brain Shavings). (I hope the advice-laden treat-law-as-an-art essay I picked out first [PDF] isn't representative of her public writings.)

"Miers Espoused Progressive Views as Elected Official, Records Show"

I Guess I'm Chillin'

I'm in the SCOTUS edition of the Coalition of the Chillin'. Must be my agnosticism on Miers. It's hard to oppose someone you know little about. Still, I must be the most vocal and disappointed on the list.

"Carnival of The Chillin’ #4"

Some Advice to the President

How does President Bush quell the restless conservatives angry with the Miers nomination? First, the White House has to start releasing evidence of Miers' intellect. Second-hand reports on her faith and her experience in Texas legal circles won't demonstrate her ability to make tough constitutional law decisions. Going to church doesn't replace an opinion on Kelo. Second, make Miers available beyond Senators. Get her on Rush Limbaugh, Sean Hannity, and Hugh Hewitt. Have a panel of critical and not so critical right-wing webloggers question her. Sure, she'll do the same wiggle John Roberts did about discussing specific issues, but we'll have a chance to see how much she knows about constitutional law and her thought processes. What impressed many--including many liberals--of John Roberts was the way he presented himself and showed off his intellect. Give Harriet Miers a chance to do the same before Democratic Senators go after her.

"New Questions From the Right on Court Pick"

"Conservatives Confront Bush Aides"

Trying to Ease Conservative Fears

Carol Platt Liebau wants to give Miers a chance to prove herself but understands many conservatives' concerns:

It's time that those putting Harriet Miers forward understood (1) the depth of anger among conservatives and (2) that we need more information than the general platitudes that have accompanied Supreme Court nominees like John Roberts. No, not commitments on how she would rule on cases -- but some insight as to how and why the President decided she should be the pick and why she'd be a good one.

I want to give Harriet Miers a chance. If she has to be opposed, it should be on the facts. But if she's to be supported, we need some facts on that, too.

Patrick Ruffini assumes Miers will be just fine on the Court because she goes to the right church. Funny, I thought it wasn't appropriate for Democrats to use religious faith as a measure of fitness for judges. The drum beat about her faith isn't telling me anything but she's an evangelical Christian. So what? What makes this evangelical Christian good enough for the Supreme Court?

Cornyn Defends Miers

Sen. John Cornyn writes in support of Harriet Miers to replace Sandra Day O'Connor. He immediately attacks critics claiming they have a pro-Ivy League bias. As Augustine on Redstate.org points out most of conservatives' fave judges had nothing to do with the Ivy League. It's just an attack-the-attacker strategy.

The heart of Cornyn's argument is like President Bush's: I know and trust her.

I have been fortunate enough to know Harriet for much of her career. I know that she believes, as I do, that judges should not legislate from the bench. I know that she believes, as I do, that judges are not some sort of elite anointed to impose their preferences on the rest of us. I know that she understands that unelected judges who serve in a democracy have a limited role--to apply the law as it was written by the people's representatives. She aptly described her judicial philosophy on Monday when she said, "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts and our society." The courts, she continued, have "obligations to strictly apply the laws and the Constitution."

He told us nothing more than we already know. He didn't mention evidence of deep, thoughtful judicial thinking and no mention of a history of being interested in constitutional law. Miers backers have had over 24 hours to offer up something, anything to ease conservatives' concerns. There really mustn't be much out there if nothing has been found. That's not reassuring.

Cornyn would have been a better pick. He has a record we can examine, and he has real world experience too.

"Harriet Miers"

Miers Dump

I have a load of commentary on Miers. Here it all is.

• William Dyer, A.K.A. Beldar, talked with Hugh Hewitt about Miers' Texas legal career. Managing a big law firm is impressive. I'm not sure how that experience applies to ruling on something like Kelo.
  
  

• Reginald Brown, who worked in the White House, counters George Will's column.
  
  

• Time found a few of Miers' writings. The excerpts sound like platitudes, not legal sophistication. That probably wasn't the purpose of the article. Some may jump on Miers supporting the notion [PDF] that "gay men and lesbian women should have the same civil rights has non-gay men and women." I'd be concerned if she didn't feel that way.
  
  

• The Houston Chronicle supports Miers' nomination, but doesn't offer much except for some quotes from friends that she's "very nice, and niceness gets a bum rap these days."
  
  

• Sen. Trent Lott speaking out on Miers. He said, "I guess they thought we'd all just say 'Whoopee!' but that's not the way it works around here anymore." After Bush pushed him aside as Majority Leader you know Lott was waiting for a chance to push back.

Concerns about Miers

Kevin McCullough gets the prime reasons many conservatives are unhappy with Harriet Miers' nomination:

1. They honestly feel like better people were passed over.

2. They don't feel like they know enough about Miers.

I'm sorry Kevin, but Miers being an evangelical Christian has little bearing on whether I think she should be a Supreme Court justice. I'd prefer a Satan-worshiping strict constructionist over an evangelical who believes in a "living constitution. I want a justice who will uphold and defend the constitution. Church going has little bearing on one's judicial philosphy. What I've gotten from the President and defenders like Hugh Hewitt is "trust him and his track record." Bush's track record with lower court nominees is good and is a positive for Miers. That leads me to Kevin's second point. Harriet Miers may be the most intelligent constitutional mind in America. Neither her supporters or opponents don't have any evidence either way. About what we know is the President trusts her. That's not good enough. Thankfully, the Senate will investigate, delve into her legal past, and ask pointed questions to divine her judicial philosophy. (At the same time the Democrats will grandstand and look like jerks.) The lack of a judgeship should not disqualify someone from being on the court. Neither should a lack of an academic job. (I'm not being a snob who's mad Miers didn't go to an elite school. Such accusations by Miers defenders are just run-of-the-mill ad hominem attacks. They're not pro-Miers rhetoric.) But in lieu of either we need to know if Miers has deeply considered the proper role of government and the courts. Thus the desire of a significant, serious paper trail. Running a Texas law firm doesn't replace that though it would provide the court with vital real-world experience.

President Bush didn't want a political fight. I'm not sure why. There's been no indication that Bush has governed by poll. After John Roberts' confirmation the man had momentum. Why pick someone from the second string?

I'm still a disappointed agnostic. I can't oppose a nominee I know next to nothing about. No George Will here. Yet, I can't go the Hugh Hewitt/knee-jerk route and back her. This dialogue between Hewitt and Stephen Bainbridge disturbs me:

HH: But given that...we all know that. But given that she's been nominated, what is the upside of throwing all these bricks? Do you want her to be defeated?

SB: The upside of throwing all these bricks is to let Bush know the base is getting a little tired of acts that Bush has done, that seem to me to be contemptuous of the base in some ways.

HH: Look, but Stephen, the base...

SB: And I think that we've got to start holding Bush's feet to the fire.

HH: Number one, that's a guarantee of losing ground in 2006. The base is splitting if it's effective criticism. Number two, on this position, and on the most important issue of the war, he has not moved an inch. Some people think he spends too much money. So what? It's less than four percent of GDP. But I really am amazed, and bewildered, by the eagerness with which conservative malcontents are assaulting the president on this. I think it is...I mean, I am just befuddled.

SB: And I think it's healthy.

HH: Healthy? Healthy to lose the majority in the Senate in 2006?

SB: I think it's healthy, because we don't have any other way of holding him accountable. He'll never be up for another election.

Dissent (in my case I wouldn't really call it that) doesn't mean we're abandoning the Republicans. It means many conservatives want their leaders to advance conservatism. What's good for conservatism is good for American. We're unsure if Miers advances that cause. I eagerly await the work of webloggers, reporters, and Senate investigators.

"The Case Against Harriet Miers: The Baseball Analogy"

Kelo Allows a City to be Moved

How important are Supreme Court justices? They issue rulings that have consequences that affect every American. The Kelo decision is allowing a Florida city to move 6000 people from their homes.

Officials of a poor, predominantly black Florida town plan to relocate about 6,000 residents to make room for a billion-dollar yachting and housing complex.

The coastal community of Rivera Beach in Palm Beach County may use eminent domain, if necessary, to claim 400 acres of land for the project, The Washington Times reported Monday.

"This is a community that's in dire need of jobs, which has a median income of less than $19,000 a year," Mayor Michael Brown said. "If we don't use this power, cities will die."

The U.S. Supreme Court in June upheld the use of eminent domain for economic purposes, ruling against a group of New London, Conn., homeowners fighting a proposed corporate development.

Moving thousands of people based on government economic edict is something that happened in Communist Russia and China. We must have justices who uphold the Constitution as written and make sure government is limited like our Founding Fathers intended.

"Florida Town Plans to Use Eminent Domain"

Bush Backed Down from a Fight

Harriet might turn out to be a fine, conservative jurist. That's not my problem with her nomination. There was no reason for a stealth candidate to be selected not when there were plenty of winning candidates available. Will Malven writes,

Taking all of the above in, and giving it the proper weight, my reaction is to say she may turn out all right, but why on Earth would President Bush wish to take the chance? The President, when running for office, promised us a justice in the mold of Thomas or Scalia. Both Thomas and Scalia were known quantities when they were nominated, and were successful in their bid to be justices. This is just a case of the President trying to avoid a tough confirmation battle. In an attempt to avoid confrontation, he has capitulated to the anti-Bush forces. This is a losing strategy. It always has been a losing strategy. The enemies of freedom never treat a move of appeasement with respect; they always see it as the first step in further capitulation. They see it as an invitation to further attack. This is also a surrender to the recent trend by the Left to “Bork” any nominee who had a demonstratively originalist record.

Ticking off the political base is not smart politics, especially since conservatives were eager for a fight. A Bork/Scalia/Thomas nominee would have given the Left convulsions. They would have let loose their dirt-digging hounds and stated shouting from their virtual rooftops. Fine. Make the Democrats try a fillibuster. If the nominee were highly qualified, intelligent, well-spoken, and scandal-free the public would have accepted him. The "Gang of 14" would crumble and the Dems would lose. Now, we have an angry group of conservatives who wonder when Republicans will start acting like they're in power.

Randy Barnett, an acceptable nominee for me, writes about Alexander Hamilton thought the Constitution allows the Senate to prevent cronyism in the judicial branch.

Politically it may be best for Miers to be rejected. Then Bush can pick a more serious candidate. There's plenty of time between now and the 2006 Congressional elections to fix the damage he's caused.

"Cronyism"

UPDATE: Douglas Kmiec defends the Miers nomination by briefly quoting Hamilton. Obviously he ignored Federalist 76.

Stephen Bainbridge takes Hugh Hewitt to task for putting so much faith in President Bush. Hey, I support the man, but the guy isn't infallible. Hewitt writes, "Either you are an originalist or you aren't. If you are, you can't be arguing that Miers 'isn't qualified.'" Hewitt has no idea if Miers is an originalist or not. Not James Dobson nor Douglas Kmiec have offered evidence to what her judicial philosophy is. That's the problem with her nomination. The Right put up with John Roberts because he had Federalist Society, Reagan credentials, and is so damn smart. (For me, the jury's still out on him.) With Miers we only know she is a church-going, loyal Bushie with breasts. That's not much in comparison to other potential nominees.

Miers' Weblog

Harriet Miers is celebrating her nomination with "her own" weblog.

[via PoliPundit]

Agnostic on Miers

With many on the Right having fits over Miers' nomination I want to make myself clear that I don't oppose her as a Supreme Court justice. I don't support her either. This is because I know little about her. What I do question is why President Bush chose a nominee only he and a few other people know much about. I don't know if she's a judicial activist or not. The faith of James Dobson doesn't cut it for me. I scratch my head on why potential candidates with fine public records weren't chosen. The administration hasn't offered an explanation. The President also hasn't read the Federalist Papers in a while.

"Call To Coalition of The Chillin’"

Bad Sign for Bush

Leftie Katie Couric and and whole bunch of people on the Right shouting "crony!" is not a good sign for your nominee.

And is it just me or does Miers look like an older version of Karen Hughes?

"Katie Wastes No Time: First Reaction to Miers Pick is Negative as Couric Raises "Cronyism" Charge"

"Bush Nominates Harriet Miers to Supreme Court"

Risky Strategy

The Anchoress thinks Miers is part of a sophisticated plan:

My own prediction: She may not make it to the Supreme Court. Bush may not even intend for her to get there. She may be, rather than the “misdirection,” many expected, an out-and-out decoy, floated to allow both the liberals and the conservatives to blast her out of the water so that Bush can then put up another candidate that both left and right - after having behaved very badly over Miers - will not dare to behave badly over, again.

The risk is Bush nominated someone he really doesn't want on the bench, and have the Senate confirm her. And why try something so tricky unless you think you're politically weak (which Bush isn't)? The most important question is what is Miers' judicial philosphy? The second-most important question is does Bush want to appoint justices in the Scalia-Thomas mold? The answer to the first question will answer the second.

"Miers: Anchoress Knows-all-Sees-all"

Sunstein on Miers

University of Chicago law professor scratches his head when comparing Miers to previous nominees:

She might be superb, but her record and experience certainly do not compare to those of recent nominees. She has neither been a judge nor had much experience with the Supreme Court itself. There's nothing comparable to the appellate work of Chief Justice Roberts, or the judicial and academic work of Breyer, Ginsburg, Scalia, and Bork. Even Souter and O'Connor, with their thinner records, had judicial opinions to evaluate.

On political grounds, there are at least equivalent questions. We appear not to have any sense of her general approach to constitutional law. From the public record, it was possible to give at least a rough and general evaluation of all or almost all of the recent nominees. Apparently that's not true here.

A reasonable conclusion is that this nomination should be viewed with uncertainty and puzzlement. A silver lining: The uncertainty and puzzlement should not divide people along political lines.

"Evaluating Supreme Court Nominees"
[via Protein Wisdom]

What Are They Thinking?

The RNC is using the words of Sens. Reid and Schumer in support of Miers. That won't reassure conservatives.

[via Instapundit]

Kristol on Miers Nomination

Bill Kristol also sees Bush's self-perceived weakness:

I'm demoralized. What does this say about the next three years of the Bush administration--leaving aside for a moment the future of the Court? Surely this is a pick from weakness. Is the administration more broadly so weak? What are the prospects for a strong Bush second term? What are the prospects for holding solid GOP majorities in Congress in 2006 if conservatives are demoralized? And what elected officials will step forward to begin to lay the groundwork for conservative leadership after Bush?

"Disappointed, Depressed and Demoralized" [via Charlie Sykes]

Unknown Miers Nominated

President Bush nominated Harriet Miers to replace Justice Sandra Day O'Connor. The qualifications of Ms. Miers seems to be she's a friend of G.W., has breasts, and will prevent some of the Democrats from putting up a hard fight. CBS News reports,

Reid had personally recommended that Mr. Bush consider Miers for nomination, according to several sources familiar with the president's consultations with individual senators. The Nevada Democrat had also warned Mr. Bush that the selection of any of several other contenders could trigger a bruising partisan struggle.

I didn't know Sen. Reid was in the majority, but the President acted like it. Anyway, it doesn't sound like Miers' nomination pleased Sen. Barbara Boxer (D-CA):

The president has selected a loyal political ally without a judicial record to sit on the highest court in the land.

Democrats and the Left were going to gripe about any nominee. So why not put the strongest conservative forward? That's what a majority party does.

What President Bush has failed to do is appoint a justice in the mold of Antonin Scalia or Clarence Thomas. That's because Miers is more unknown than new Chief Justice John Roberts. She has no public track record from her years conseling legal clients and President Bush. There are plenty of qualified conservative candidates out there who's views we know. Once again, Bush acts like a weak President who doesn't want to fight Senate Democrats. Betsy Newmark writes, "That is not a position of leadership, but of bowing to pressure." Whether it is fatigue in the Iraq War or the (undeserved) criticism he took from Hurricane Katrina Bush isn't acting like a man who won an election last year and has his party controlling both house of Congress. As a caller on a local Milwaukee talk radio show said, "Conservatives own Washington." Too bad the only Republican who knows that is Rep. Tom DeLay, and he's been indicted.

We have Hugh Hewitt scolding conservative critics:

The Miers nomination is turning into a Rorschach test dividing conservatives into the camp that understands governing for the long term and those that are so emotionally fragile or contingent in their allegiance that anything they (1)don't understand or (2) disappoints in any way becomes an occasion for panic and declarations of irreparable injury.

I also note that the hand-wringers act as though a Republican president is an accident, and that there won't be any more Bush picks, nor any more Republican presidents. Keep up the carping and we might again see the Dems get close to an unbreakable filibuster margin in the Senate.

For a man who loves the collected wisdom of the blogosphere he's quite condescending. Hewitt assumes a Republican President will follow President Bush. With the weak GOP line up that isn't assure. Bush had an opportunity to put a bold conservative stamp on the Supreme Court. With Harriet "Madam X" Miers we just don't know if he did that.

Some very important voices in the conservative movement have shared their dissapointment. First, the editors of National Review:

Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field. It seems highly unlikely that she will be the kind of justice who, in combination with Roberts, Scalia, and Thomas, will attract additional votes by the sheer force of her arguments. This nomination was a missed opportunity.

Second, the directors of Redstate.org:

For all we know, and we know very little, Harriet Miers is the second coming of Antonin Scalia. But, we do not know. What we know is encouraging to the extent that she might be right on life issues. She did actively oppose the American Bar Association's position. Assuming that Miers is a conservative jurist, we still cannot, at this time, accept or endorse this nomination.1

Justices of the United States Supreme Court have consistently had notable careers with stints in the state judiciary, federal judiciary, government, or academia. Those picks that originate from government or from academia, usually have stellar careers and brilliant academic resumes, coupled with impressive writings often in academic journals.

From what we know, Harriet Miers is unqualified for the position. She had an impressive career of "firsts" as a female attorney in Texas, but those are not enough.

...

We can be convinced that Miers is stellar. We can be convinced that Miers will be an originalist willing to reject the liberal dogma of Roe. But from where we sit now, this is a profoundly disappointing nomination, a missed opportunity, and an abdication of responsibility to make sound, well qualified nominations. Whether it is also a betrayal of first principles is still to be determined.

Third, is David Frum who called the Miers nomination an "unforced error":

worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left. This is a chance that may never occur again: a decisive vacancy on the court, a conservative president, a 55-seat Republican majority, a large bench of brilliant and superbly credentialed conservative jurists ... and what has been done with the opportunity?

I am not saying that Harriet Miers is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.

Fourth is Stephen Bainbridge who writes, "Bush is now peeing on the movement."

Harriet Miers could end up being even better than Scalia. My problem with her nomination is, like John Roberts, we know little about her views. We have to resort to second-hand reports from 30-year platonic friends (just scroll down).

"Bush Taps Close Ally For Court" [via ScrappleFace]

Roberts Confirmed

The John Roberts Era begins for the Supreme Court. Now, we'll see if he's the conservative jurist many said he was or if he's Souter II. We'll see how he is on campaign finance law when a Vermont and Wisconsin case are heard.

"Supreme Court Will Hear Challenges to Campaign Law"

Reid's "Petty Partisanship"

The LA Times urged Senators to confirm Judge John Roberts and launched a pre-emptive strike on Democrats who will oppose him:

It will be a damning indictment of petty partisanship in Washington if an overwhelming majority of the Senate does not vote to confirm John G. Roberts Jr. to be the next chief justice of the United States. As last week's confirmation hearings made clear, Roberts is an exceptionally qualified nominee, well within the mainstream of American legal thought, who deserves broad bipartisan support. If a majority of Democrats in the Senate vote against Roberts, they will reveal themselves as nothing more than self-defeating obstructionists.

Then we have Senate Minority Leader Harry Reid (D-NV) going to the Senate floor to oppose Roberts' confirmation.

Here's hoping the Times editorial board lays it on thick for Reid's "petty partisanship."

"Confirm Roberts"

Boring Hearings

The Roberts' hearings have not earned a post on TAM this week. I didn't expect any drama since Roberts was replacing Rehnquist instead of swing-vote O'Connor. The end result was assured before the hearings began. Other than Sens. Kennedy and Biden looking like jerks there wasn't much to watch.

"Roberts' Confirmation Virtually Assured"

Cryin' Coburn

Yesterday at the first day of John Roberts' confirmation hearing, when Sen. Coburn wasn't working on a crossword puzzle (guess he hasn't been bitten by the sudoku bug) he was crying:

A television camera behind Coburn caught the senator working a crossword puzzle. But Coburn went from detachment to emotional overdrive when it was his turn to talk; seconds after asserting that "a super-legislator body is not what the court was intended to be," he paused and wept.

Colleagues looked alarmed. One GOP committee aide put his hand to his mouth. It was the biggest Senate choke-up since Sen. George V. Voinovich (R-Ohio) cried while opposing the nomination of the ambassador to the United Nations -- and Coburn has to get through three more days of hearings.

The future of the Supreme Court is important, but the man needs to relax.

"A Day of Firsts, Overshadowed"

William Rehnquist, R.I.P.

Chief Justice William Rehnquist died last night. The Wisconsin native was 80. He will be remembered for leading the court down a more conservative, originalist path and for presiding over the impeachment trial of President Bill Clinton. He will also be remembered for his devotion to his job. He endured cancer treatments yet continued to work. He truly took his life appointment seriously. Godspeed, William.

Who will be the first to claim Rehnquist's death is part of a Rovian conspiracy to divert attention from "inadequate" disaster planning in Louisiana and Mississippi?

"Rehnquist is Dead at 80"

Civil War Smear

It's still August, a slow news time. Thus we get a ridiculous story about John Roberts' choice of words to refer to the Civil War.

When John G. Roberts Jr. prepared to ghostwrite an article for President Ronald Reagan a little over two decades ago, his pen took a Civil War reenactment detour.

The article, which was to appear in the scholarly National Forum journal, was called "The Presidency: Roles and Responsibilities." Roberts was writing by hand a section on how the congressional appropriations process had evolved.

A fastidious editor of other people's copy as well as his own, Roberts began with the words "Until about the time of the Civil War." Then, the Indiana native scratched out the words "Civil War" and replaced them with "War Between the States."

With this start Washington Post writer Jo Becker finds a way to pump out a few hundred words to try to connect Roberts with wacked-out Confederate sympathizers. The implication is Roberts is a secret admirer of the Confederacy and wants to the return of times when blacks are owned by whites. In the end "Civil War" was put into the article. Becker doesn't know who, she just writes, "someone." From the documents at hand she doesn't know. Maybe it was Roberts who those extra words disturbed the piece's eloquence.

This is a non-story that will only give Lefty race-baiters a tiny bit of ammunition to use against Roberts. Thankfully, he didn't use the even more loaded phrase "War of Northern Aggression."

"In Article, Roberts's Pen Appeared to Dip South" [via Ann Althouse]

Worrying Less about Roberts

Nina Totenberg really likes the word "very" when describing Judge John Roberts. Sometimes he's "very very conservative" other times he's "very very very conservative." And just to mix things up Roberts is "a really conservative guy," "a hardline conservative," "a clear conservative," and "a conservative Catholic." I have been a little uncomfortable with Roberts simply because few know much about his judicial philosophy. He's worked in conservative Republican circles. That doesn't mean he'll be Scalia II. But the more I learn about Roberts' history and the attacks on him make me think he won't be Souter II. He seems to be a conservative who is intellectually honest enough to raise his thinking beyond mere ideology. Russell Kirk would be proud.

"Totenberg: Roberts 'Much More Conservative than I Ever Would Have Guessed'"

6000th Post & John Roberts on Recess-Appointments

Here is my little contribution to Hugh Hewitt's and Radio Blogger's attempt to pound through the documents put out by the Reagan Library.

Box 31-JGR/Legal Services Corporation (4)

The first items are memos to Ted Olson, then Assistant Attorney General in the Office of Legal Counsel, regarding concerns about the Justice Department appropriations bill. Specifically President Reagan "expressed reservations concerning the provision [the "Weicker Amendment"] freezing the level of grants from the Legal Services Corporation in the absence of action taken by directors confirmed by the Senate." Recess-appointed directors would have reduced authority.

This is a question of whether Congress can restrict Presidential power by controling the purse. Roberts thinks not. In a memo to his boss Fred Fielding dated 01.09.1984 he writes,

As guardians of the legal prerogatives of the Presidency, we should resist any Congressional effort to demean the recess appointment power by distinguishing between the powers of the confirm and recess-appointed nominees. Olson views the difficulty as arising from the fact that Congress in this instance exercised its authority in an appropriations bill, but Congress cannot accomplish through the budgetary process that which it is constitutionally prohibited from doing directly. Congress can decide not to fund LSC, and thereby deprive our recess-appointed directors of authority, but if LSC is funded at all, Congress cannot condition decisions with respect to those funds on whether the directors are confirmed or recess-appointed.

Next there are pages and pages of xeroxed legal opinion dealing with recess appointments (written by Lawrence Walsh of all people). Along with that I found extracts of the law at issue.

Also contained in this box was a letter from the president of the Colorado Bar Association asking the President for more money for LSC. Roberts issued a brief reply.

Roberts could be asked some questions on his view of Congressional power over the executive branch. That could lead into questioning about Presidential war powers. Nothing in these files seem like ammunition for the Democrats.

It's not as exciting as knowing this is the 6000th post on TAM. Well, sort of. Before Movable Type, and before Blogger, I hand-coded TAM with a plain-old text editor and FTP'd to Angelfire. I did that for over a year so, technically, there are 6000+ posts in the "vast" TAM library. One thing I've learned is I've written over 6000 posts and TAM is almost six years old. So I've averaged about 1000 posts per year. That's just under three posts a day, everyday, for six years. When I look at it that way I wonder if I've written that much. Three posts a day doesn't seem like much, but I know there have been times I've spent a hours working on only a few hundred words. I hope I've offered quality over quantity. Thanks for reading.

$253 Million in Vioxx Trial

Texas jurors just socked Merck with at $253.4 million in the first Vioxx case. I've only glanced at the story since Vioxx was pulled off the market last year. As an inquisitive layman I want to know if Vioxx really was that dangerous. A study found the drug "could double risk of heart attack or stroke if taken for 18 months or longer." But what does that mean? Does that mean my risk of a heart attack went up from 0.001% to 0.002%? If the risk was small to begin with a doubling of it doesn't do much. And that increased risk might be acceptable if the drug was doing such a good job relieving pain. Many lawsuits end up being a lot of Monday-morning quarterbacking. Much like the revived blame game about Sep. 11.

"Jury Awards Widow $253.4M in Vioxx Trial"

UPDATE: Dave Taylor comments:

Merck, of course, is going to appeal, but the writing's on the wall, and the implication for big pharma overall is clear: you can't risk developing new drugs at all, ultimately, because even with the best disclosure mechanisms and the best communications strategy, you can find that the little speed-bump in the testing phase comes back as a 500-foot monster and, like this Vioxx settlement, might just crush your firm.

"Merck's Vioxx Liability: The Death of Big Pharma?"

NARAL Lies About Roberts

To learn about NARAL's dishonesty you can read TAM or FactCheck.org:

The ad is false.

And the ad misleads when it says Roberts supported a clinic bomber. It is true that Roberts sided with the bomber and many other defendants in a civil case, but the case didn't deal with bombing at all. Roberts argued that abortion clinics who brought the suit had no right use an 1871 federal anti-discrimination statute against anti-abortion protesters who tried to blockade clinics. Eventually a 6-3 majority of the Supreme Court agreed, too. Roberts argued that blockades were already illegal under state law.

The images used in the ad are especially misleading. The pictures are of a clinic bombing that happened nearly seven years after Roberts signed the legal brief in question.

Matthew Barge's article goes on to say NARAL used "the classic tactic of guilt by association."

"NARAL Falsely Accuses Supreme Court Nominee Roberts" [via Eugene Volokh]

UPDATE: Charmaine Yoest found that pro-abortion groups NOW and NARAL have taken hit in their pocketbooks since 1992, the "Year of the Woman." The false anti-Roberts ad may be their last gasp.

[Yes, I'm going update-crazy tonight.]

These "Reprehensible" Times

What the NY Times calls "initial inquiries" a lawyer called "reprehensible." That being the Times' look into Judge Roberts' adoption of his children. Drudge strikes again:

NY TIMES QUESTIONED LEGALITY OF JUDGE ROBERTS ADOPTIONS; SUPREME COURT NOMINEE 'DISAPPOINTED'

**Exclusive**

Supreme Court Nominee John Roberts expressed great disappointment after learning the NEW YORK TIMES was poking around for details on his adopted children, sources tell the DRUDGE REPORT.

The DRUDGE REPORT first revealed how TIMES investigative reporter Glen Justice questioned if the adoption records for the Roberts children, Josephine and Jack, ages 5 and 4, would be made available for examination.

TIMES editors were determined to find any possible legal irregularities in the adoptions, insiders claim.

FOXNEWS's Brit Hume reported late last week how the TIMES has been asking lawyers that specialize in adoption cases for advice on how to get into the sealed court records:

"Sources familiar with the matter tell FOXNEWS that at least one lawyer turned the TIMES down flat, saying that any effort to pry into adoption case records, which are always sealed, would be reprehensible.

A senior editor at the TIMES lashed out at this space over the revealtion:

"The DRUDGE REPORT is wrong, overwrought and a gross misrepresentation of what has happened," blasted the paper's senior editor in a press release.

But the editor did confess: "Our reporters made initial inquiries about the adoptions... They did so with great care, understanding the sensitivity of the issue."

Texas Sen. Kay Bailey Hutchison called the newspaper's actions "reprehensible," saying the inquiry crossed the "fine line between legitimate background inquiries and invasion of privacy."

The National Council For Adoption issued the following statement:

“NCFA denounces, in the strongest possible terms, the shocking decision of the New York Times to investigate the adoption records of Justice John Roberts’ two young children. The adoption community is outraged that, for obviously political reasons, the Times has targeted the very private circumstances, motivations, and processes by which the Roberts became parents.

"The adoption histories of four- and five-year old children have no bearing whatsoever on the suitability of Justice Roberts to serve on the U.S. Supreme Court – or in any other position, for that matter."

The Times' reputation is sinking in the mud. They may cut themselves off from the net just because of sheer embarassment.

Roberts Attack Ad Update

Tom Curry of MSNBC has more on NARAL Pro-Choice America's anti-Roberts ad. First, the ads will air in Rhode Island and Maine to put pressure on GOP Senators Olympia Snowe and Lincoln Chafee. Second, Curry reports the federal law in question in the Bray case was the Civil Rights Act of 1871, not the Klu Klux Klan Act that Ed Whelan said in today's conference call. Third, the headline editor of MSNBC doesn't understand the GOP. Snowe and Chafee aren't "centrists." They're a dying breed known as "liberal republicans."

John Hinderaker gives the ad a thrashing going far beyond my meek "bait-and-switch" remark:

So NARAL misrepresents the Bray case in every particular. Roberts didn't "support violent fringe groups" or a "convicted clinic bomber." He supported the federal government's position on a specific question of law--correctly, as the Court found. NARAL's reference to a "convicted clinic bomber" is especially outrageous. The Bray case had nothing to do with a bombing by Eric Rudolph or anyone else, and Rudolph attacked the Birmingham clinic--the bombing that is referred to in the NARAL ad--eight years after Roberts wrote the brief on the Section 1985(3) issues.

For NARAL to suggest that John Roberts has ever done anything to support violence against abortion clinics (or anything else) is so far outside the bounds of civilized debate that one can hope that, even in today's far-gone Democratic Party, sane voices will be raised to denounce NARAL's advertising campaign.

If this is how the air war starts it's going to get really ugly. $40 million may be spend to pursuade 100 Senators. NARAL is just the beginning.

"Abortion Rights Group Presses Republican Centrists on Roberts"

Drumming Up Business

Professor Christine Hurt got an offer from an enterprising (I'm being kind) law graduate she could definitely refuse.

"Interesting, but Unethical, Business Plan"

First Anti-Roberts Ad Airs Tuesday

Tomorrow begins the air war in the Judge Roberts nomination battle. NARAL Pro-Choice America will be lauching a $500,000 ad buy in Rhode Island and Maine to highlight some work Roberts did as a lawyer in the Solicitor General's office when President George H.W. Bush was President. The ad involves Bray vs. Alexandria Women’s Health Clinic. NOW and pro-abortion groups wanted to use the Klu Klux Klan Act of 1871 against pro-life protesters that included radical and violent elements like the counter-productive Operation: Rescue. In a conference call today Ed Whelan of the Ethics and Public Policy Center said Roberts' amicus brief supported the argument that "under established precedent" the federal statute didn't apply. Before the court Roberts said [PDF], "The United States appears in this case not to defend petitioners' tortious conduct, but to defend the proper interpretation" of the Klu Klux Klan Act. He went on to say,

Petitioners do not interfere with respondents' rights because respondents are women. Petitioners do what they do because they're opposed to an activity, the activity of abortion. They target their conspirators not because of who they are, but because of what they are doing.

...

Petitioners are opposed to abortion, not women, even though only women can exercise the right to an abortion.

A bombshell this isn't. Nor is this some wild legal concoction. The reasoning wasn't ideological; it was determining the proper bounds of a federal law.

In their ad NARAL contends Roberts' work means he turned a blind eye from violence at abortion clinics. To hammer that message home the ad stars Emily Lyons a victim of a clinic bombing who had endured "more than 20 surgeries for the injuries she sustained." But NARAL is very misleading. The Bray case dealt with a clinic in Virginia. Lyons was injured Birmingham, Alabama. The culprit was Eric Rudolph. This is a bait-and-switch to rile up abortion supporters and scare Democratic Senators into forcefully opposing Roberts. Jennifer Braceras, member, U.S. Commission on Civil Rights thought Lyons part in the ad was "totally inappropriate." She later added that it was "unfortunate we can't have a more intellectual debate of the role of the court in our society." But when the nominee is as nebulous as Roberts and interest groups have money to burn this is what we get.

Kossite Takes Over Times

I figured wacked-out Kossites would go after Judge Roberts' kids, not the NY Times:

NY TIMES INVESTIGATES ADOPTION RECORDS OF SUPREME COURT NOMINEE'S CHILDREN

**Exclusive**

The NEW YORK TIMES is looking into the adoption records of the children of Supreme Court Nominee John G. Roberts, the DRUDGE REPORT has learned.

The TIMES has investigative reporter Glen Justice hot on the case to investigate the status of adoption records of Judge Roberts’ two young children, Josie age 5 and Jack age 4, a top source reveals.

Judge Roberts and his wife Jane adopted the children when they each were infants.

Both children were adopted from Latin America.

A TIMES insider claims the look into the adoption papers are part of the paper's "standard background check."

Bill Borders, NYT senior editor, explains: "Our reporters made initial inquiries about the adoptions, as they did about many other aspects of his background. They did so with great care, understanding the sensitivity of the issue."

Roberts’ young son Jack delighted millions of Americans during his father’s Supreme Court nomination announcement ceremony when he wouldn’t stop dancing while the President and his father spoke to a national television audience.

Previously the WASHINGTON POST Style section had published a story criticizing the outfits Mrs. Roberts had them wear at the announcement ceremony.

One top Washington official with knowledge of the NEW YORK TIMES action declared: “Trying to pry into the lives of the Roberts’ family like this is despicable. Children’s lives should be off limits. The TIMES is putting politics over fundamental decency.”

One top Republican official when told of the situation was incredulous. “This can’t possibly be true?”

The Times' public editor Joe Plambeck is already on the case and got a response from editor-in-chief Bill Keller. The Times is being "particularly sensitive" since Keller adopted kids too. That sounds like a racist claiming some of his best friends are black.

Nothing surprises me anymore. It's still amazing a reporter's first instinct (i.e. "initial inquiries") is to what can be found on a public figure's kids. I'm still waiting for the illegal immigrant rumors to start flying. Hopefully that sad excuse for a paper will make everything (except the book review) subscription. Then we can forget about the Grey Lady.

"New York Times Investigates Adoption Records of John Roberts Children"

I Wonder if They Read TAM

Project 21 jumped on the Kossites who wanted to immediately begin digging up dirt on Judge Roberts' young son.

If they got the idea from TAM, great. I'd just like the credit. Egoboo is always good.

"Liberal Internet Activists Suggest Investigating Nominee's Toddler"

A Kossite at WaPo

While not digging into a 5-year-old's private life (does he even have one?) Washington Post writer Robin Givhan "givhs" into her inner Bush-basher and goes after Judge Roberts' family for looking too traditional:

It has been a long time since so much syrupy nostalgia has been in evidence at the White House. But Tuesday night, when President Bush announced his choice for the next associate justice of the Supreme Court, it was hard not to marvel at the 1950s-style tableau vivant that was John Roberts and his family.

There they were -- John, Jane, Josie and Jack -- standing with the president and before the entire country. The nominee was in a sober suit with the expected white shirt and red tie. His wife and children stood before the cameras, groomed and glossy in pastel hues -- like a trio of Easter eggs, a handful of Jelly Bellies, three little Necco wafers.

...

Separate the child from the clothes, which do not acknowledge trends, popular culture or the passing of time. They are not classic; they are old-fashioned. These clothes are Old World, old money and a cut above the light-up/shoe-buying hoi polloi.

...

In announcing John Roberts as his Supreme Court nominee, the president inextricably linked the individual -- and his family -- to the sweep of tradition. In their attire, there was nothing too informal; there was nothing immodest. There was only the feeling that, in the desire to be appropriate and respectful of history, the children had been costumed in it.

Too traditional? "Costumed" by history? Yeesh! To Lefties like Givhan everything personal is political. As Michele Malkin points out "a mother and her children just wanted to look nice for the most historic moment in her husband and their daddy's life."

"An Image A Little Too Carefully Coordinated"

"Patent-Leather Hegemony"

Coburn Supports Roberts

About Judge Roberts Sen. Tom Coburn said, "My litmus test is, do they believe in the limited role of the court in terms of following and interpreting the constitution and not making policy, and I'm convinced right now that he is interested in limiting their decisions to what constitutionally they're supposed to do."

But here's the kicker:

Coburn said after his meeting with Roberts that he would have preferred a nominee who would reverse Roe v. Wade, but said it was "more critical to get someone "who's on the side of the Constitution and its strict interpretation."

What was said behind closed doors? Did Coburn ask Roberts about abortion? I and much of the American public want to know his stance.

Coburn may be resigned to accept legalized abortion until the American culture more strongly rejects it. It doesn't hurt knowing abortions are at 30-year lows in Minnesota and Wisconsin. Roberts needs to explain if Roe was the court making policy. If he doesn't think so then he needs to explain where in the constitution abortion is mentioned. What authority did the court have to yank that decision away from individual states?

Or Coburn might be convinced Roberts takes a "neutral" stance on abortion, the same stance as Rehnquist, Scalia, and Thomas. That would be make this pro-lifer and anti-judicial activist quite happy.

"Roberts Wins Another Endorsement From GOP"

Not a Federalist

Judge John Roberts has never been a member of the Federalist Society, that group of conservative lawyers--a "gigantic networking club" to use one description. I don't care how many conservatives are praising his nomination--they don't know as much about him as they want you to believe--I worry this guy is another David Souter.

Why is President Bush so scared to nominate an easy-to-see conservative? Maybe Bush isn't as conservative as many of his supporters think he is.

"Roberts NOT a Federalist Society Member!" [via ACSBlog]

Roberts Not a Confident Choice

Judge John Roberts may turn out to be even more conservative than Justice Scalia. However, we don't know his judicial philosophy very well. He's only been a judge on the D.C. appelate court for two years. Even though he helped write an anti-Roe legal brief during the Reagan administration he said that landmark case settled law in a Senate nomination hearing.

Dennis York steps into the wayback machine and finds some eerie parallels between Roberts' nomination and Justice Souter's. Just replace Souter's name with Roberts' and it sounds like President Bush 41 was talking like his son.

Augustine at Redstate.org takes a positive but not a gushing "pop the champagne corks" view.

Even if Roberts is willing to trash Roe v. Wade Wisconsin Right to Life points out [PDF] there would only be four justices opposed to keeping Roe the law of the land.

President Bush was afraid to nominate someone who everone knew would be an originalist or strict constructionist. Daniel Flynn writes, "What's the point of Bush taking such a risk when he holds all the cards?" Roberts may be as conservative as Robert Bork, but no one knows. This is a sign of Republican political weakness. Odd since Bush won two Presidential elections and helped his party solidify their majorities in the Congress. You'd think with this string of victories he and other Republicans wouldn't be afraid of choosing a polarizing candidate.

Does Bush, Rove, Cheney, Frist, and Dole think the American electorate could quickly swing to the Democrats and cost the GOP political offices? Maybe. They may be looking at the poor reaction to their party's championing of the Terri Schiavo case and wonder if voters are worried about a party getting too big for its britches.

"Coulter Splits on Court Pick"

"Don't Assume Roberts Is Another Souter Just Because He Doesn't Have A Long Paper Trail"

Another Case to Tar Roberts

Look for a recent case on the treatment of Gitmo prisoners, Hamdan v Rumsfeld, to be used by Democrats and Leftists to make Judge Roberts look like a wild-eyed crazy man. This will go along side the "french fry case" [and here].

"The Largest Battle Of The Roberts Confirmation War"

Fools

When Kossites decide to go after judicial nominee's kids they should first figure out if they're old enough to have done something damaging to their parents. Jack Roberts looks a little young to care about his sexuality and to be an addict.

UPDATE: Some sensible commenters have properly bashed the idea of trying to smear a little kid. Bravo to them. Obviously not all Kossites are wacked out.

Defending Roberts' Opinion on Hedgepeth

Beldar looked at Roberts' Hedgepeth opinion and is pleased with what he saw. Roberts wasn't happy with police arresting a girl for eating a french fry in a Washington, D.C. metro station but the question was whether any constitutional rights were violated.

John Hinderocker adds:

Roberts' opinion is a good example of conservative jurisprudence. He begins by noting that "No one is very happy about the events that led to this litigation," and pointing out that the policies under which the girl was "apprehended" have since been changed. Nevertheless, the controlling law was clear, and the court was not authorized to second-guess the wisdom of the District's policies: "The question before us," Roberts wrote, "is not whether these policies were a bad idea, but whether they violated the Fourth and Fifth Amendments to the Constitution." One basic difference between liberals and conservatives is that conservatives understand that there are any number of ideas that may be stupid, but are not unconstitutional. As Roberts wrote: "Rational basis review does not authorize the judiciary to sit as a superlegislature."

The Hedgepeth case may tug at certain heartstrings, but it plainly was decided correctly. Roberts wrote for a 3-0 panel affirming a district court decision, so the conclusion was unanimous. It's hard to paint a judge who is part of a unanimous consensus as "out of the mainstream."

Roberts Watch

TTLB has a Roberts tracking page, and NRO's Bench Memos has plenty of running commentary.

UPDATE: Kossites watching Bush's announcement noticed this:

When Roberts thanked his family, he mentioned his son, Jack...Roberts' wife's face fell. It was like a poker tell. I think we should research Jack.

Another commenter wondered if Jack Roberts is gay. That's pretty low immediately wanting to go after a nominee's kid.

UPDATE II: This from Power Line:

Pop the champagne corks, conservatives. Roberts is a fantastic choice, a brilliant and bulletproof conservative. And it was fun to see Pat Leahy and Chuck Schumer on television tonight; they looked just awful. After President Bush's terrific, upbeat presentation of Roberts, and Roberts' graceful, brief talk, Leahy and Schumer sounded like they had just dropped in from another planet. They were dour, hateful, and came across as sad and pathetic minions who have been sent on a hopeless mission by their bosses at "People for the American Way."

Ann Althouse quotes Sen. Leahy: "No one's entitled to a free pass to the Supreme Court." Sounds like the Vermont Democrat wants Roberts to run through a gauntlet.

Leon H at Redstate.org has a bunch of quotes from Lefties blasting Roberts. Sounds good to me. He also points out that Roberts' wife runs Feminists for Life. This is good stuff. With David Souter conservatives had the word of John Sununu. With Roberts we have solid conservative credentials. But this is the first nomination of the weblog era. Anything could happen.

UPDATE III: Jib makes me wonder about Roberts and Roe v. Wade. One interpretation could be that as an appellate judge he couldn't overturn Roe. That's what I hope he meant in his 2001 statement.

UPDATE IV: Progress for America already has JudgeRoberts.com up and running. These guys have at least $18 million ready to defend him. Yikes! [via Patrick Ruffini]

Supreme Court Announcement in Prime Time

[To all Instapundit readers I have plenty of more links on Roberts in the post above.]

President Bush will announce his first Supreme Court nominee during prime time tonight. That's the first time I've ever heard a President do that. This from a guy who rarely does prime time press conferences. It sounds like it will be a woman. An Edith somebody, but no one really knows. Drudge reports it will be John C. Roberts, Jr. We'll soon find out. Bryon York has been doing his geeky best and found out what domain names some anti-Bush groups have bought in preparation for the judicial battle.

Let's assume it's Roberts. Who is this man? He's spent about two years on the D.C. Circuit of the U.S. Court of Appeals, he's argued 39 cases before the Supreme Court, and he has good conservative credentials:

clerking for Rehnquist, membership in the Federalist Society, laboring in the Ronald Reagan White House counsel's office and at the Justice Department into the Bush years, working with Kenneth Starr among others

Conservative legal eagle Mark Levin thinks Roberts is "excellent."

The problem is Roberts has only two years of legal opinions from which to gleen his judicial philosophy. That's Souter-like in that the Democrats will have little to attack him with on that front. There is one case that will probably be used to tar Roberts as "extreme."

In the unanimous ruling last October in Hedgepeth v. WMATA, Roberts upheld the arrest, handcuffing and detention of a 12-year-old girl for eating a single french fry inside a D.C. Metrorail station. "No one is very happy about the events that led to this litigation," Roberts acknowledged in the decision, but he ruled that nothing the police did violated the girl's Fourth Amendment or Fifth Amendment rights.

The conservative Rutherford Institute was working on that case. And the Heritage Foundation used the "french fry case" as an example of overzealous police zero-tolerance policies. Not since "freedom fries" were served in the House cafeteria will the fried food play such a large role on Capitol Hill.

"Bush Goes Prime Time to Announce Nominee"

"D.C. Circuit Judge Gets on Supreme Court Short List"

Rehnquist is Staying

You'd almost think a war wasn't going on with all the speculation about William Rehnquist's "impending" retirement. Well, he just squashed all that talk:

I want to put to rest the speculation and unfounded rumors of my imminent retirement. I will continue to perform my duties as chief justice as long as my health permits.

It looks like Rehnquist his life term seriously.

"Rehnquist Won’t Resign"

It's Going to Get Ugly

Ann Althouse is really off her game. She writes,

Bush will have to nominate a Supreme Court Justice -- or two or three. And the key action really is occuring now. (Once the nominee is picked, there will be little that can be done to prevent confirmation.)

There's no assurance confirmation will happen. With all the money going into advocacy (pro and con) there are sure to be surprises. Dirt will be dug up on any nominee(s), parsing of phrases in legal briefs will turn pundits of all types into amateur legal scholars (most of them bad), and claims of hiring illegal immigrants or not paying employer's Social Security tax will fly around like mosquitos in the northwoods.

We also don't know if the Senate filibuster compromise will hold. Will Democrats find an "extordinary circumstance" to filibuster a nominee? Will Republicans put up with that or move to end judicial filibusters?

The nominations of Ruth Bader Ginsberg and Stephen Breyer were pretty smooth. Compare that to the bruising battles over Clarence Thomas and Robert Bork. After listening to a portion of former Solicitor General Ted Olson's speech to the Federalist Society I'm as pessimistic as he is.

Her summer law class must really be distracting her, or she's just a typical Wisconsinite who soaks up what little summer we get.

"Thoughts at the End of a Long, Hard Day."

Eminent Domain Moratorium

Connecticut state legislators and the governor told local municipalities to stop their use of eminent domain until new laws have been passed. That includes the New London, CT plan that was the subject of the Kelo decision.

The Democratic leaders said they sent out a letter to every mayor and first selectman in the state advising them to "put any current or planned eminent domain proceeding on hold."

Notice these are Democrats taking action. The response to Kelo has been far-reaching and bi-partisan as it should be.

"Eminent Domain Put On Hold In Connecticut" [via California Yankee]

Juicy Supreme Court Rumors

Milwaukee radio yapper Mark Belling just told his listeners two interesting rumors about Supreme Court vacancies:

1. Chief Justice William Renquist, a Wisconsin native, was intending to resign last week, but got ticked when the White House leaked the news to Robert Novak.

2. Judge Diane Sykes, former Wisconsin State Supreme Court Justice and current judge on the Seventh Circuit Court of Appeals in Chicago is on President Bush's "long list" of potential nominees. As Belling stated there could be as many as 100 names on that list. Belling wondered how the Democrats would handle a Sykes nomination. She was easily confirmed to the appeals court with no controversy.
   

As with any Supreme Court rumors, take these with a grain of salt. Belling said his sources were from groups planning the national campaign to get Bush's nominees confirmed.

UPDATE: Erick at Redstate.org gets into what rumors he's heard.

The Right on Each Side of Kelo

John Hinderaker sees little problem with the decision while Richard Espstein calls it "truly horrible."

"Second Thoughts on Kelo" [via Michelle Malkin]

"Blind Justices"

Some Kelo Links

This morning the Institute for Justice "will make a major announcement concerning a national effort to combat eminent domain at the state and local level."

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Mary Madigan has a nice essay on Kelo's effects in everyday life.

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In 2000 at the Democratic National Convention, Rep. Harold Ford, Jr. looked like a new, fresh face for the Democrats. His future looked bright. That futured dimmed since he found "value in the court's decision."

Property Rights Amendment, Take 3

Stephen Macklin is already up to a third draft of his anti-Kelo amendment:

The right to ownership of property being the cornerstone of liberty, the Fifth Amendment to this Constitution's statement that property shall not be taken for public use without just compensation shall be narrowly construed. To protect the right to ownership of property, public use shall be limited to property that shall be entirely owned, maintained and operated by government for the direct use of the public for a period of 50 years. Property shall not be taken if the purpose of the acquisition is the promotion of economic development for a private business enterprise which business enterprise would own any right, title, or interest in the property so acquired.

I'm really starting to like it. It is clear, sounds simple, and specifically closes the door Kelo opened. But we're just at the beginning. Not only do we need a good amendment, but we need a coalition to make it the law of the land. That's where the Castle Coalition might come in. But I want it to be broadly based. We need Kos-types and Deaniacs and paleoconservatives as well as more mainstream people on board.

"Open Source Amendment Project - Revision 3"

An Anti-Kelo Amendment

Stephen Macklin has a draft of a property rights constitutional amendment. Something strikes me as odd about it--I'm trying to anticipate unintended consequences--but it's a good place to start a discussion on how to preserve property rights.

"Open Source Constitutional Amendment" [via RussBlog]

UPDATE: On a related note, Sen. John Cornyn has introduced legislation that would

declare Congress’s view that the power of eminent domain should be exercised only ‘for public use,’ as guaranteed by the Fifth Amendment, and that this power to seize homes, small businesses, and other private property should be reserved only for true public uses. Most importantly, the power of eminent domain should not be used simply to further private economic development.

Good news. Laws are being formulated. Now, coalitions have to be organized.

[via The Volokh Conspiracy]