In one of the more disgusting displays of political opportunity, Senator Charles Schumer desecrated the dead body of Rosa Parks for political purposes as she lay in state in the US Capitol today.

This morning I went and visited Rosa Parks in the Capitol Rotunda to pay my respects.

Being in the presence of Ms. Parks was awe-inspiring. This was a woman who changed history with one thin dime. She paid her fare and took her rightful seat on the bus and America was never the same again.

Like Rosa Parks, Judge Alito will be able to change history by virtue of where he sits. The real question today is whether Judge Alito would use his seat on the bench, just as Rosa Parks used her seat on the bus, to change history for the better or whether he would use that seat to reverse much of what Rosa Parks and so many others fought so hard and for so long to put in place.

Judge Alito's visit to Rosa Parks this morning was appropriate. His record, as I'm sure Rosa Parks would agree, is much more important.

A preliminary review of his record raises real questions about Judge Alito's judicial philosophy and his commitment to civil rights, workers' rights, women's rights, the rights of average Americans which the courts have always looked out for.

All right, Senator -- let's have the specifics. What rights is he out to roll back? What is your evidence for this accusation? And if he is, as you seem to indicate, acting in a manner contrary to his oath to follow the Constitution, why have you not introduced articles of impeachemnt due to his failure to exercise "good behavior" on the circuit court?

Could it be that you know that Judge Alito is not ruling contrary to the Constitution, merely contary to the Democrat platform which has been rejected by the American people in the last two elections?

And why, Senator, when you talked about the need for uniting Americans instead of dividing them, did you pimp the corpse of a great American like Rosa Parks to cast doubts upon the character of a highly respected judge and sow division between Americans based upon race sex, class, and ideology?

Posted by: Greg at 03:14 PM | No Comments | Add Comment
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Fifteen years ago, New Jersey Senator Frank Lautenberg called Samuel Alito “impartial, thoughtful and fair” and offered whole-hearted support for his confirmation.

Today, though, Flip-Flop Frank is singing a different song.

“Fifteen years ago, I supported Samuel Alito to be a judge based on his record as the United States Attorney for New Jersey, but his tenure on the appeals court has been marked by troubling decisions. Judge Alito has demonstrated a hostility to fundamental civil rights, and his record on the bench must be closely scrutinized by the Senate.

“New Jersey has a proud tradition of producing great judges, most notably former Supreme Court Justice William J. Brennan. Justice Brennan was chosen for the Supreme Court based on his legal knowledge and wisdom, unlike what we see today, in which nominees are chosen based on litmus tests that cater to narrow ideological groups.”

OK, Senator -- which "fundamental civil rights" has Judge Alito demonstrated a hostility towards? Given your statement, it should not be hard for you to produce a detailed list with copious documentation.

Or could it be that the litmus test in question comes from "narrow ideological groups" on the Left, those that want abortion on demand and perpetual racial preferences -- in other words, the Democrat base?

Posted by: Greg at 03:01 PM | No Comments | Add Comment
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CBS White House Correspondent set a new low in journalism today – he even outdid his Dan Rather, one of his predecessors.

CBSNEWS Chief White House correspondent John Roberts described the President’s selection of Judge Samuel Alito as “sloppy seconds” during today’s press gaggle with White House Press Secretary Scott McClellan.

John Roberts: “So, Scott, you said that -- or the President said, repeatedly, that Harriet Miers was the best person for the job. So does that mean that Alito is sloppy seconds, or what?”

Scott McClellan: “Not at all, John.”

The all-knowing, all-seeing Matt Drudge provides this tidbit of information for us.

”Sloppy seconds” is described in the United Kingdom’s A Dictionary of Slang as:

Noun: “A subsequent indulgence in an activity by a second person involving an exchange of bodily fluids. This may involve the sharing of drink, or more often it applies to a sexual nature. E.g. ‘I’m not having sloppy seconds, I want to shag her first.’”

Talk about an inappropriate no-class comment.

UPDATE: As pointed out in the comments on this thread, Roberts has apologized.

“At the morning White House gaggle, I used an unfortunate choice of words in a question to Scott McClellan. Please be assured that there was no perjorative intent to my question. I was merely attempting to reconcile past statements about Harriet Miers with the President's new nominee for the Supreme Court.

The early morning White House gaggle is an informal, free-wheeling and often irreverent forum, which is not broadcast and generally not publicly available.

Obviously, my tone this morning was a little too casual.

As we all experience from time to time, it was one of those 'oops' moments which we wish we could rewind and re-record.

I apologize to anyone who took offense to my poor choice of words. I can assure you I meant none."

Not only did he do so in the statement released by CBS, but heoffered his apologies to Scott McCllena at a press briefing as well.

"Scott, on the subject of rude, my apologies for my unfortunate choice of words this morning to you."

Not only that, but he has even posted a response to some of the comments that appeared on the CBS PublicEye blog.

After reading some of the posted comments in response to my apology, I remain deeply troubled and wanted to take a moment to try to clear this situation up.

I can assure you that in no way did I intend to use the phrase 'sloppy seconds' in either a sexual connotation or a perjorative way. Rather, I was thinking 'second choice' - or 'second best'. If Harriet Miers was the "best person for the job" - then - where did that leave Alito? It was a poor choice of words, for which I am deeply sorry.

Many posters seem to think that it is indicative of an 'agenda' or 'reveals my true thinking' about the White House. That is simply not the case. I goofed. And I freely admit it. The words had barely escaped my lips when I cringed and thought 'oops - that was a stupid thing to say'.

Again, the forum was informal and is never broadcast, so I my linguistic guard was down. I uttered a phrase that is used colloquially these days to describe a number of situations. At no time did the sexual connotation ever enter my mind, but I agree, it has no place at the White House.

I have offered my apologies to Scott McClellan, and he has graciously accepted. Scott and I have a good working relationship and he is confident that I meant nothing untoward.

And I offer a humble apology to anyone who took offense upon reading the text of my question. Journalists must be held to high standards, and in this case, I fell short.

You can be confident that it will not happen again.

With highest regards,

John Roberts
Chief White House Correspondent
CBS News

Fine, he sounds contrite and the explanation is plausible. We've all put our foot in our mouths from time to time. We'll have to give him a break on this one.

Posted by: Greg at 10:53 AM | Comments (1) | Add Comment
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Following the Miers debacle, the President has nominated Judge Samuel A. Alito Jr. to the US Supreme Court. While not my preferred candidate, he certainly fell on what I would call my “top five” list of possible successors.

Samuel A. Alito Jr., 55, is a jurist in the mold of Justice Antonin Scalia. Nicknamed "Scalito," or "little Scalia," by some lawyers, the federal appeals court judge is a frequent dissenter with a reputation for having one of the sharpest conservative minds in the country.

Educated at Princeton University and Yale Law School, Alito was nominated by President George H.W. Bush to the U.S. Court of Appeals for the 3rd Circuit in 1990. He had worked for the Justice Department in the Reagan administration and served as U.S. attorney for the District of New Jersey.

The linked Washington Post piece offers further links to some of Alito’s more significant opinions while on the bench – including his dissent in Planned Parenthood v. Casey. He writes well, logically, and bases his opinions on solid constitutional and statutory grounds. I therefore concur with my brother and sisters on the right in supporting this selection.

I think Mark Levin puts it best.

I have known Judge Alito for two decades. We served together in the Meese Justice Department, where he worked in the Solicitor General's Office and was considered the sharpest of Charles Fried's assistants. He is every bit as smart and personable as Chief Justice John Roberts. He is an expert on constitutional law. And he obviously has a longer judicial record, so his judicial philosophy is well-known. Judge Alito is soft-spoken. He is his own man (efforts in the media this morning to paint him as "Scalia-lite" or "Scalito" are intended to fire-up the leftwing base). If he is not qualified to serve on the Supreme Court, then no conservative is qualified.

So letÂ’s get the hearings scheduled and the votes taken. Sandy wants to get back to the ranch and her ill husband, and an ideal candidate is ready to take her place.

Posted by: Greg at 10:50 AM | No Comments | Add Comment
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I found this piece from back in July, talking about a candidate for the Supreme Court who I could support – and who would be hard for the Democrats to oppose. She is Michigan Supreme Court Justice Maura Corrigan.

Corrigan, a justice on one of the country's most conservative state courts, may have just what some Republicans are looking for: practical experience away from the bench and a firm commitment to judicial restraint.

As First Lady Laura Bush and other court watchers urge the president to replace Sandra Day O'Connor with a woman, Corrigan could be an attractive choice—perhaps without the nasty confirmation battle that is almost certain with some of the more outspoken candidates on the list.

"On the Michigan scene, as far as I can see, I've never heard or read that people think that she's an extremist," said Robert Griffin, a former U.S. senator from Michigan who also served with Corrigan on the Michigan Court of Appeals. "She's very competent, does a very good job."

A mainstream conservative. A woman. Oh, yeah – she’s Hispanic, too.

Her pre-judicial resume is impressive, though not elitist. Her career as a judge has included repeated reelection by the people of Michigan, which should make it clear difficult for Democrats to tar her as an extremist.

Corrigan graduated from Marygrove College, a Catholic liberal arts college in Detroit, and received her law degree from the University of Detroit in 1973. She served as a law clerk at the Michigan Court of Appeals for one year before becoming an assistant prosecuting attorney for the state. In 1979, she became the chief of appeals in the U.S. attorney's office in Detroit, where she worked for a decade, eventually becoming the chief assistant U.S. attorney. In 1989, Corrigan moved to a private law firm in Detroit, Plunkett & Cooney, where she specialized in defending local governments in criminal and civil rights cases, said Mary Massaron Ross, a lawyer at the firm.

Ross said few lawyers in the firm were surprised when Michigan Gov. John Engler appointed Corrigan to the state Court of Appeals in 1992. Corrigan was twice elected by Michigan voters to that court and then was nominated by the Republican Party in 1998 for an open seat on the Michigan Supreme Court—a seat that she won. From 2001 to 2004, she served as the court's Chief Justice and has presided over what some describe as one of the most conservative state courts in the country.

Corrigan has been at the center of a court that is clearly grounded in the textualist approach favored by Justice Scalia.

Since 1999, four of the seven justices on the court, including Corrigan, have strongly emphasized their commitment to following legislative intent through "textual analysis," a philosophy of judicial restraint championed by U.S. Supreme Court Justice Antonin Scalia and the Federalist Society, a conservative legal group. In a 2004 article, Corrigan criticized activist judges for relying on an "antidemocratic premise that judges just know better . . . . The constant temptation in judging is to be expedient, to reach out and fix what appears to be wrong. I know that I was not elected as chief justice of the Michigan Supreme Court to be a philosopher-king."

The court's four conservative justices make up the core of the court's 5-2 Republican majority that almost always prevails. The split on the court has led to many heated dissents from the court's two liberal justices. Some criminal-defense lawyers say the court's philosophy has made it difficult for them to win appellate cases, yet other observers say the court's rulings have become much more predictable and consistent since 1999.

"The court is a court that sees its role as having a more limited perspective than the courts in the 1970s and 1980s because it gives great deference to legislative intent," said Patricia Boyle, a former justice on the Michigan Supreme Court.

That takes care of the judicial philosophy issue. Sounds like exactly what was promise during the 2004 election. In Justice Corrigan we would get a justice who recognizes the limitations of the judiciary envisioned by the Founders.

There is one additional bonus. Maura Corrigan is a state judge, not a federal judge. She will bring with her a different perspective from the current crop of justices, all of whom have been federal judges at the time of their appointment to the High Court. In that she will bring on a perspective that will disappear with the retirement of Justice OÂ’Connor. That is a benefit, as I see it.

So, my conservative brothers and sisters – what do you think?

Posted by: Greg at 12:11 PM | Comments (3) | Add Comment
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Consider this post.

Ms. Miers Withdraws

I think Ms. Miers has been unfairly treated by many who have for years urged fair treatment of judicial nominees.

She deserves great thanks for her significant service to the country. She and the president deserved much better from his allies.

No, Hugh, Miers was not ill-treated by most of us who criticized her. She was weighed in the balance and found wanting as a nominee for the Supreme Court by many people, and they exercised their right as Americans to speak out.. If anyone treated her unfairly, it was President Bush. Miers was the wrong person at the wrong time for the wrong job. I would have supported her nomination to the District Court or the Circuit Court – but I do not believe she was ripe for the Supreme Court.

I will agree with one point – Miers does deserve our thanks for her service to the country. She has made significant contributions to the success of the Bush aadministration – but accepting the nomination is not one of them. Her decision to withdraw is.

Posted by: Greg at 12:10 PM | No Comments | Add Comment
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TodayÂ’s editorial on the Miers withdrawal strikes exactly the right note.

No conservative should be in a celebratory mood now that Harriet Miers has withdrawn her nomination. For one thing, reasonable conservatives who considered her unqualified for the Supreme Court conceded that she has had an accomplished career and that she has served the president loyally and, for the most part, well. Gloating would be unseemly. For another thing, the object of conservative agitation against Miers was to get a solid justice confirmed. So the conservative opponents of her nomination have not yet won a victory.

I am pleased that the nomination has been withdrawn. I hope to see a good nomination made – but will be content to see the confirmation of a justice whose writings and career show him or her to be a competent, thoughtful expert in the law who has demonstrated a devotion to constitutional principles. That is the sort of nomination I expect of the George W. Bush – and I expect it to be one that conservatives on both sides of the tracks can support.

Posted by: Greg at 12:08 PM | No Comments | Add Comment
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What are GOP Senators saying about the Miers nomination? It does not sound supportive to me.

"I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned. That is pretty obvious."

Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."

"There is an awful lot of Republican senators who are saying we are going to wait and see," he said.

Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."

"I certainly go into this with concerns," Mr. Coleman said.

And these are the ones who are commenting publicly.

Posted by: Greg at 01:43 PM | No Comments | Add Comment
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What are GOP Senators saying about the Miers nomination? It does not sound supportive to me.

"I am uneasy about where we are," said Senator Jeff Sessions, an Alabama Republican on the Judiciary Committee who had so far expressed only support for the president's choice. "Some conservative people are concerned. That is pretty obvious."

Senator John Thune, Republican of South Dakota, called Republican sentiment toward Ms. Miers's nomination "a question mark."

"There is an awful lot of Republican senators who are saying we are going to wait and see," he said.

Senator Norm Coleman, a Minnesota Republican in the political middle of his party, said he needed "to get a better feel for her intellectual capacity and judicial philosophy, core competence issues."

"I certainly go into this with concerns," Mr. Coleman said.

And these are the ones who are commenting publicly.

Posted by: Greg at 01:43 PM | No Comments | Add Comment
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Coming back from teaching my night class this evening, my father and I had a discussion of the Harriet Miers nomination. We've not talked about this nominee up until now, but I was not at all surprised to find that neither of us is enthused about the pick.

During the course of the conversation, I realized that there are a lot more reasons for rejecting Miers that have come to light in just the last few days.

At one key juncture after another, Miers has faltered where Roberts glided. Her courtesy calls on the Judiciary Committee's top two senators prompted conflicting tales of curious comments that she may or may not have made. Her answers to the committee's questionnaire included a misinterpretation of constitutional law and were deemed so inadequate that the panel asked her to redo it. She revealed one day that her D.C. law license had been temporarily suspended -- and said the next day that the same thing had happened in Texas -- because of unpaid dues.

Now I'm told that ther edues issue is not a big deal -- especially since they are often handled by the lawyer's firm rathat than the lawyer, and that most government lawyers in DC are not members of the DC Bar. But it is the cummulative effect of these missteps that is troubling. Harriet Miers has, quite bluntly, failed to look competent.

Mr. President -- Harriet Miers is no doubt a wonderful human being and a great friend. She is also, in my estimation, a fine lawyer. But she has been a bad pick from Day One. Now she appears to be in a free-fall. Withdraw the nomination, please, and find another individual to fill this vacancy.

Not just for the sake of the country.

But also for the sake of your friend.

Posted by: Greg at 05:04 PM | No Comments | Add Comment
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I was starting to warm to the idea of Harriet Miers on the Supreme Court. I now have to reject that possibility, given that she has indicated that she sees the Federalist Society as too political, but does not see the NAACP as being political at all!

Q. Ms. Miers, are you a member of any predominantly minority organizations, such as the NAACP, Black Chamber of Commerce, Urban League or any other predominantly minority organizations?

A. Women minorities?

Q. Well, maybe predominantly racial and ethnic minorities?

A. No.

Q. . . . . In your capacity as an at-large member do you think being involved in such organizations might assist you in having a perspective that – bring a perspective to your job that you don’t have?

A. I attend meetings designed to give me that input. However, I have tried to avoid memberships in organization s that were politically charged with one viewpoint or the other. For example, I wouldn’t belong to the Federalist Society any more than – I just feel like it’s better to not be involved in organizations that seem to color your view one way or the other for people who are examining you. I did join the Progressive Voters League here in Dallas during the campaign as part of the campaign.

Q. Are you active in the PVL now, do you intend to be?

A. No, I am not.

Q. Do you think the NAACP and Black Chamber of Commerce are in the category of organizations you were talking about?

A. No, I donÂ’t. . . . .

Transcript of Trial, Roy Williams et al. v. City of Dallas, No. CA-3-88-152-R, pages V-46 to V-47 (U.S. Dist. Ct., N.D. Tex. Sept. 11, 1989).

Posted by: Greg at 12:39 PM | No Comments | Add Comment
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LetÂ’s split the Ninth Circuit. No, not because it is the goofiest of liberal courts in the land, but because it is too large and to slow to really be effective.

The Ninth Circuit, which covers nine states, is considered the largest of all U.S. Circuit Courts. It is larger than the 1st, 2nd, 3rd, 4th , 5th , 6th , 7th , and 11th Circuits combined. The Ninth Circuit contains the fastest growing states in the U.S.

According to the Census Bureau, by 2010, the population of the states the Ninth Circuit covers will grow to over 63 million.

The court's increasing caseload negatively impacts the judges' ability to stay on top of legal developments, Murkowski said. It handles more cases than any other Circuit. Last year alone, 14,272 cases were filed.

The Ninth Circuit is the only circuit in which all judges do not review panel decisions, and it allows the court to be comprised of 11 members compared to the full 28 members. Every other Circuit requires a review by its full panel, thus resulting in the need for only six members of the 28 to have a majority opinion, Murkowski added.

As it stands now, the average time to get a final disposition of an appellate case in the Ninth Circuit is about five months longer than the national average.

Anything would be an improvement over the current system.

Posted by: Greg at 02:09 PM | Comments (1) | Add Comment
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Former Congressman Bob Barr offers this observation, which in many ways mirrors mine. We don’t think that Harriet Miers is anything other than a smart lady and a fine lawyer – but we just don’t see her as having a clearly defined judicial philosophy or a deep concern for the constitutional law issues that are the bread-and-butter of Supreme Court cases.

I know there have been lawyers who have served with distinction on the Supreme Court — men like Lewis Powell, Abe Fortas and even the outstanding Louis Brandeis — whose first judicial job was on the U.S. high court.

The parallels really don't hold up well, Mr. President, because all of those justices actually had well-known records of serving in professional and academic venues in which they were called on repeatedly to issue opinions on complex matters involving constitutional and judicial issues.

Miers, despite have blazed a pioneering trail as the first woman head of the Texas Bar Association, is not possessed of such a record. Indeed, even though her defenders in your administration have noted that her duties as White House counsel necessarily include dealing with matters involving constitutional issues, you have already made it clear you will refuse to allow public or even Senate access to White House documents relating to her official duties.

Thus, even if there existed a paper trail irrefutably establishing that Miers' legal reasoning were every bit as profound as Justice Brandeis', we'll never know, because you refuse to show us the proof.

Moreover, the issues on which your counsel's constitutional bona fides might be established necessarily would relate to a fairly narrow range of matters, and all would necessarily involve justifications for your exercise of certain powers (torture, suspension of habeas corpus, defense of executive privilege). After all, that's what White House counsels are paid to do — find ways to justify whatever power a president wants to claim.

I’ll say it quite clearly – if this were a District Court nomination, I would be strongly supportive of a Miers nomination. I’d fight hard for a Circuit Court confirmation, too. But elevation to the Supreme Court requires an almost intangible something more – and I just don’t see this nominee as possessing it.

May God bless Harriet Miers – and may he keep her off this honorable court.

Posted by: Greg at 02:06 PM | Comments (1) | Add Comment
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Not if you consider the implications of this statement from Judiciary Chairman Arlen Specter.

Senator Arlen Specter, the chairman of the Senate Judiciary Committee, who presides over confirmation hearings, offered a blunt assessment that was yet another sign that the nominee faced an uphill battle on Capitol Hill. Though Mr. Specter called Ms. Miers "intellectually able," he said she had a "fair-sized job to do" to become fluent in the language of constitutional law, which will be essential for senators who want to examine her judicial philosophy in deciding whether to confirm her.

"She needs more than murder boards," Mr. Specter, Republican of Pennsylvania, said in an interview, referring to the mock question-and-answer sessions most nominees use to prepare for their confirmation hearings. "She needs a crash course in constitutional law."

Excuse me, but shouldn't a candidate for the highest court in the United States already be "fluent in the language of constitutional law"? Shouldn't she (or he) be sufficiently well-versed in the field that there is no need for a "crash course in constitutional law"? Can any candidate described in this manner be said to be ready for the Supreme Court?

Sounds like Specter has supplied us with another "Hruska moment".

Please, Mr. President, withdraw this nomination.

(Hat Tip -- Southern Appeal)

Posted by: Greg at 01:02 PM | No Comments | Add Comment
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Columnist EJ Dionne attempts to argue that many on the right are being hypocritical in their use of Harriet Miers' religious affiliation as a tool to discern her judicial philosophy.

Shortly after Bush named John Roberts to the Supreme Court, a few Democrats, including Sen. Richard Durbin, D-Ill., suggested that the nominee might reasonably be questioned about the impact of his religious faith on his decisions as a justice.

Durbin had his head taken off. "We have no religious tests for public office in this country," thundered Sen. John Cornyn, R-Texas, insisting that any inquiry about a potential judge's religious views was "offensive." Fidelis, a conservative Catholic group, declared that "Roberts' religious faith and how he lives that faith as an individual has no bearing and no place in the confirmation process."

But now that Harriet Miers, Bush's latest Supreme Court nominee, is in trouble with conservatives, her religious faith and how she lives that faith are becoming central to the case being made for her by the administration and its supporters. Miers has almost no public record. Don't worry, the administration's allies are telling their friends on the right, she's an evangelical Christian.

Dionne, of course, may have a minor point in noting the hypocrisy of objecting to Durbin's questions while offering assurances based upon Miers' evangelical Christianity. But he is is wrong on the much more substantial question of religious tests -- for neither the Durbin question nor the evangelical assurance constitutes a religious test of any sort -- and certainly not as understood by the Framers of the Constitution.

I pointed this out some months back, responding to an editorial in the New York Sun.

Now we all know that these religious questions are primarily a proxy for questions about abortion and the religion clauses of the First Amendment. Again, these are proper areas for scrutiny. If a hypothetical nominee were, for example, a member of the Christian Identity Movement (White Supremacy dressed up with a facade of theology), would it not be proper to inquire about the nominee's ability to uphold the Fourteenth and Fifteenth Amendments to the US Constitution, as well as the Civil Rights Acts enacted pursuant to them? Of course it would -- and the failure of the nominee to give "the right answers" would be a more than sufficient basis for rejection without running afoul of Article VI.

But how does that square with the many weighty and serious quotes from the Founders regarding religious tests for office?

Coxe, in his examination of the Constitution ("No religious test is ever to be required of any officer or servant of the United States. The people may employ any wise or good citizen in the execution of the various duties of the government") to William Lancaster of North Carolina ("... we form a government for millions not yet in existence. I have not the art of divination. In the course of four or five hundred years, I do not know how it will work. This is most certain, that Papists may occupy that chair, and Mahometans may take it" ) to Luther Martin ("there were some members so unfashionable as to think that a belief of the existence of a Deity, and of a state of future rewards and punishments would be some security for the good conduct of our rulers, and that in a Christian country it would be at least decent to hold out some distinction between the professors of Christianity and downright infidelity or paganism") to Edmund Randolph ("A man of abilities and character, of any sect whatever, may be admitted to any office or public trust under the United States"), the Founders debated the religious test from every angle and then, by an overwhelming margin, excluded it.

The answer, of course, is to understand what constituted a religious test in the mind of an educated American in the latter part of the eighteenth century -- to strictly construe the original intent of the text at the time of its writing and adoption. These were men whose context was fundamentally British, and whose historical points of reference were usually those which came from that heritage. It is no accident, for example, that the rights protected in the Bill of Rights are a reaction to the abuses of the British monarchs over the previous two centuries. Viewed in that context, the prohibition on religious tests is designed to prevent the imposition of "test oaths" which excluded members of certain sects from holding public office or exercising certain rights. The most famous of these were the anti-Catholic oaths which forced individuals to repudiate certain tenets of the Catholic faith and the authority of the pope. Those who refused to take such an oath were barred from public offices and faced certain restrictions on their liberties. Such is not the case with Durbin's questions, which could NEVER rise to the level of a "religious test" in the sense intended by the Founder. Durbin's refusal to vote for a candidate because of those views also does not violate the religious test provision, any more than my refusal to vote for a Satanist does.

Mr. Durbin insisted to reporters last week that he wasn't interested in applying a "litmus test" to judicial nominees. The senator told Judge Roberts, "If you will be honest and forthcoming, you're going to find a warm reception from our side of the aisle, even if we disagree with you on any given issue." But two days later, Mr. Durbin went on NBC's "Meet the Press" to say that if Judge Roberts did not find an implied right to privacy in the Constitution, on which the right to abortion is based, "It would disqualify him in my mind."

Now notice, please, that Durbin's basis for giving or denying his vote is NOT religious, but is instead based upon constitutional interpretation. That is a legitimate basis for a Senator to use in making a decision. After all, a nominee who stated that he believed that Plessy is right and Brown is wrong would merit rejection. While I disagree with Durbin's litmus test (and it is a litmus test, despite his protestation to the contrary), I don't have a problem with rejecting a nominee on the basis of jurisprudential principles, regardless of the source of the "deeply held personal beliefs" which lead to such a conclusion. I wish we on the conservative side had made a practice of doing so over the last few decades.

I'll say about Miers what I said about Roberts -- to the degree that inquiries and assertions regarding her religious beliefs are the basis for discerning a judicial philosophy and/or her basic competence to do the job of a Supreme Court Justice, there is no religious test being imposed.

(Another commentary on Dionne at Captain's Quarters)

Posted by: Greg at 05:30 AM | Comments (2) | Add Comment
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What else can one conclude based upon this statement from todayÂ’s news conference?

Asked by a reporter if she was "the most qualified" person he could find in the country, he said, "Yes, otherwise I would not have" named her.

Dare I suggest a list of other candidates better qualified for the Supreme Court than Harriet Miers?

1. Janice Rogers Brown
2. Priscilla Owen
3. Michael Luttig
4. John Cornyn
5. Edith Jones
6. Consuel Callahan
7. Maura Corrigan
8. Alberto Gonzales
9. Manuel Miranda
10. Miguel Estrada
11. Robert Bork
12. Ted Olson
13. Edith Clement
14. Emilio Garza
15. J. Harvie Wilkinson
16. Bill Pryor
17. Samuel A. Alito
18. Michael W. McConnell
19. Larry D. Thompson
20. Karen Williams

And those are just the Republicans who spring to mind – I won’t get into the liberals who, while repulsive to me in terms of judicial philosophy, are much better qualified, folks like Alan Dershowitz and Larry Tribe.

Posted by: Greg at 03:24 PM | No Comments | Add Comment
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Arlen Specter inadvertently summed up a part of my problem with Harriet Miers.

When asked about a timetable for hearings, Mr. Specter suggested that it would in part be up to Ms. Miers, who will have to study "so that she would have the grasp of these very complex decisions."

The Supreme Court is not a place for someone to learn on the job. If she lacks a grasp of Supreme Court jurisprudence, I would have to argue that she is not particularly qualified for the job of Supreme Court justice.

After all, would you want your doctor to have to study up on anatomy before your surgery?

UPDATE: This story popped into my head yesterday as I considered the Miers nomination.

It is reminiscent of the 1970 nomination hearings for Nixon's nominee Judge G. Harold Carswell. Sen. Roman Hruska (R-Nebraska), defended Carswell against the charge that he was "mediocre," declaring "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Has Arlen Specter supplied us with the “Hruska Moment” of this nomination battle?

Posted by: Greg at 03:23 PM | Comments (1) | Add Comment
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Arlen Specter inadvertently summed up a part of my problem with Harriet Miers.

When asked about a timetable for hearings, Mr. Specter suggested that it would in part be up to Ms. Miers, who will have to study "so that she would have the grasp of these very complex decisions."

The Supreme Court is not a place for someone to learn on the job. If she lacks a grasp of Supreme Court jurisprudence, I would have to argue that she is not particularly qualified for the job of Supreme Court justice.

After all, would you want your doctor to have to study up on anatomy before your surgery?

UPDATE: This story popped into my head yesterday as I considered the Miers nomination.

It is reminiscent of the 1970 nomination hearings for Nixon's nominee Judge G. Harold Carswell. Sen. Roman Hruska (R-Nebraska), defended Carswell against the charge that he was "mediocre," declaring "Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."

Has Arlen Specter supplied us with the “Hruska Moment” of this nomination battle?

Posted by: Greg at 03:23 PM | Comments (1) | Add Comment
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This piece caught my eye while researching Harriet Miers. It involves her position on the issue of gay rights, as indicated on a survey submitted to a homosexual group when she ran for city council in Dallas in the late 1980s.

Miers answered "Yes" to the survey question, "Do you believe that gay men and lesbians should have the same civil rights as non-gay men and women?"

She was noncommittal on several other questions, saying, for example, that she would be willing to discuss the need for a law prohibiting discrimination in housing or public accommodations against people who had AIDS or were HIV-positive.

Asked whether qualified candidates should be denied city employment because they are gay or lesbian, she said, "I believe that employers should be able to pick the best qualified person for any position to be filled considering all relevant factors."

She answered "No" without elaboration when asked whether she believed, both as a citizen and a legislator, that criminalization of the private sexual behavior of consenting adult lesbians and gays should be taken out of the Texas criminal code.

She said Dallas had a responsibility in AIDS education and treatment and that she favored more money being spent in that area "assuming need and resources. I do consider the AIDS illness as a serious total community problem." She underlined "total."

Now I donÂ’t know how her views have changed over the last 15-20 years. IÂ’m told she underwent a religious conversion experience sometime during that period. But it does raise a red flag for me. Does she believe that these issues should be taken out of the political arena via judicial decree, or does she recognize that her policy preferences are not constitutional law? Will she be an activist on these issues, or will she, like Justice Felix Frankfurter, hew to the Constitution despite her liberal policy preferences while still in the political arena? After all, one can support non-discrimination laws as politically desirable while not seeing that policy as mandated by the Constitution.

But I guess that is where my problem comes from. There is no record of rulings, no history of scholarly articles, that give us any clue as to the restraint of activism of a hypothetical Justice Miers. She is a cipher on such matters. And for that reason I continue to oppose her nomination for the court.

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Well, the president made his second nomination to replace Sandra Day OÂ’Connor.

President Bush named White House Counsel Harriet Miers, 60, to be associate justice of the U.S. Supreme Court today.

Miers, who was Bush's personal attorney in Texas, was the first woman elected president of the Texas Bar Association and was a partner at the Texas law firm of Locke Liddell & Sapp before coming to Washington to work in the Bush administration.

The announcement came just two hours before Chief Justice John G. Roberts Jr. formally took his seat as chief justice of the United States on the high court's opening day of the 2005 term.

Miers would replace retiring Justice Sandra Day O'Connor, generally considered the decisive swing vote on many close issues before the court.

If confirmed by the Senate, Miers would be a rare appointee with no experience as a judge at any level. Initial searches of news archives also suggested that Miers has not been an outspoken advocate for or against any particular issue.

The response of the Democrats in this instance bothers me a great deal. They are too accepting and too gracious.

Reaction from Democrats was noncommittal but not negative, mostly because of who she isn't (a prominent conservative judge similar to some of those on the White House short list) than who she is.

Vermont Sen. Patrick J. Leahy, the top Democrat on the Senate Judiciary Committee, said Miers has been a Bush loyalist and that "it is important to know whether she would enter this key post with the judicial independence necessary when the Supreme Court considers issues of interest to this administration."

But White House spokesman Scott McClellan told reporters that both Republican and Democratic senators suggested Miers by name to the president.

One Democrat who appeared pleased by the choice was Senate Minority Leader Harry Reid (Nev.).

"I like Harriet Miers," said Reid, who had voted against John Roberts as chief justice in Roberts' confirmation vote last week, in a statement. "In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."

Later when meeting with Miers at the Capitol, Reid noted that 39 other people have been appointed to the Supreme Court without having experience as a judge. He praised her experience as a trial lawyer, an occupation he shares with her.

"So anyone with that background makes me feel good -- someone who has been a courtroom, tried cases, answered interrogatories, done all those things that lawyers need to do," Reid said.

I don’t like it when the opposition is so tepid – we needed a candidate who pissed-off the Left, not one who provoked such a low-key response. That leads me to wonder what they know that we don’t, or what dirt they have on her.

I am, to say the least, disheartened. Not because of the failure of the president to nominate a Hispanic or a sitting judge, though those things trouble me. Rather, I am upset by the lack of credentials on the part of this nominee after the excellent choice of John Roberts for the Court

This is not an individual with the necessary credentials to serve on the Supreme Court. While she may be a superior lawyer, that does not necessarily lead to the belief that she will be a superior judge. She lacks a significant scholarly record. She is a bit older than I would prefer to see. Quite simply, this is a case of “insider-ism” run wild.

National Review puts it well in todayÂ’s editorial on the selection.

Harriet Miers could turn out to be a solid conservative justice, with an intellect and commitment to constitutional rectitude to match Antonin Scalia. The president may believe that she is, and is likely to remain, a solid legal conservative. In accepting the nomination, she said, “It is the responsibility of every generation to be true to the Founders’ vision of the proper role of the courts in our society.” That is something of a platitude; but it is, at least, the right platitude.

When the American Bar Association came out for legal, and subsidized, abortion, Miers argued that members of the organization should be allowed to vote on it first. Perhaps she would have similarly democratic inclinations — and a similar willingness to buck elites on moral issues — on the Supreme Court.

But none of this adds up to persuasive evidence that Miers would pull the Court, and its constitutional law, back toward its proper source. John Roberts was a “stealth nominee” in that he did not have declared positions on such questions as the constitutionality of affirmative action and anti-abortion laws. But Roberts possessed stellar professional qualifications, had impressed everyone who came in contact with him, had written well-reasoned judicial opinions, and had conservative legal heavyweights willing to vouch for his soundness.

These things are either not present, or are present to a smaller degree, in MiersÂ’s case. Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within BushÂ’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.

Harriet Miers is not the sort of nominee that we were promised by the president. She lacks the experience and record that a Supreme Court nominee needs to inspire the confidence of the American people. It is my profound hope that this nomination is withdrawn or defeated so that a more acceptable candidate may be put forward.

OTHER VOICES:
Michelle Malkin (Twice)
Captain's Quarters
Q and O
The Moderate Voice
All Things Beautiful
Southern Appeal (multiple times by different contributers to that outstanding blog)
Blogs for Bush (several times)

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Gwendolen Davey was a bright, motivated kindergarten teacher in at Chambers Elementary School Houston's Alief ISD. She was engaged to be married. One afternoon, she went out to walk her dog and never made it home.

Breanna Zipf was a 17-year-old drug user with a history of blackouts and seizures. She had no driver's license because of her medical condition, which could cause her to lose consciousness behind the wheel and wreck any vehicle that she was driving. Breanna stole her mother's rental car so that she could make a run to a local fast food restaurant.

Their paths crossed when Breanna blacked out after running a stop sign while speeding and ran Ms. Davey down on the sidewalk near her home. Breanna then got out of her car and walked home without making any attempt to render aid to her victim.

On Thursday, Breanna Zipf was convicted of murder. This is a good thing.

On Friday, though, the same jury gave a sentence that constituted a manifest injustice.

One day after convicting Breanna Zipf of murder for a traffic accident that killed a kindergarten teacher, a jury decided Friday that she should serve 10 years' probation.

Zipf, 18, wept after state District Judge Brock Thomas announced the sentence.

Her father said he was glad she would avoid prison.

The father of her victim, however, said he had expected the teen to serve prison time.

"I don't like it very much," said Robert Davey, whose daughter, Gwendolen Davey, was run down July 23, 2004, by a car Zipf was driving.

Thomas will announce the conditions of Zipf's probation in a hearing Monday.

That this irresponsible, self-indulgent little murderer will be permitted to walk the streest where she ran down an innocent woman and left her to dies is an outrage. It is my hope that Judge Thomas will impose the toughest possible conditions upon Breanna Zipf -- conditions that will make it likely that this killer will eventually screw up and do at least part of the 10 years behind bars.

And I urge the Texas legislature to fix this law. No more probation for murderers.

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