I've said elsewhere, I oppose the Miers nomination, not for any one reason, but for the convergence of inexperience and cronyism -- neither of them alone a sufficient reason to reject -- and for the growing suspicion that there is something stealthy about this nomination. Not that any secret deal has been cut, but that Miers is so closely aligned to Bush, and so devoted to him, that Bush would be in effect appointing himself to the court.
That being said, I looked back last night to another president who re-shaped the Supreme Court in a few months. That would be Abe Lincoln, who appointed a total of five Supreme Court justices, three in rapid succession.
Now as Lincoln is held up as a great American president, an exemplar of political maturity and statesmanship -- in short, everything George W. Bush's critics say he lacks -- you'd think his Supreme Court appointments would look nothing like Bush's current fiasco.
You'd be wrong.
The only difference is, Lincoln didn't have the howling opposition Bush has, both from his base and his enemies, when they are displeased. But then, in these matters, Lincoln went out of his way not to displease his friends, and his enemies were safely out of the union and could do him no harm.
One other difference between now and then was that Supreme Court justices had more direct authority over the circuit courts they oversaw. They didn't just accept petitions, they went out personally and heard cases. They were expected to know the nuances of the state laws -- which in those days were not entirely overridden by federal law.
Consequently, by tradition, the Supreme Court justice who oversaw a circuit was a man from it (the chief justice, obviously was an exception). That encouraged the habit of treating Supreme Court judgeships as political plums, and as reward to politicians in states that had been particularly helpful in getting a president elected.
The top court already had a vacancy when Lincoln was elected. Justice Peter V. Daniel had died on May 31, 1860. The seat traditionally went to a Southerner (Daniel was from Virginia), but Buchanan held off naming a replacement, probably figuring, correctly, that to do so would pour more sectarian fuel on the nation's raging political fire during a desperate election campaign.
But Buchanan delayed too long, even after the results of the election were known. As Southern states seceded from the union in reaction to Lincoln's win, they took their senators with them, and the majority in that chamber shifted to the Buchanan-hating Republicans. Buchanan finally nominated his attorney general, Jeremiah S. Black, but the Senate rejected him.
Black was an able legal mind, a union loyalist who later served in the Lincoln Administration, and judging by modern standards he would have been a far more capable appointment to the court than any of the men Lincoln subsequently put forth. But politics denied him the job.
Lincoln, distracted by the collapse of the union, did not immediately act to fill the gap on the top court. Two others quickly followed. Elderly Justice John McLean of Ohio (he had been appointed by Andrew Jackson) died April 4, 1861, after a long illness, and at the and of the month Justice John A. Campbell of Alabama resigned to join the Confederacy.
[Campbell was a moderate and a union man; he had liberated his own slaves, and in December 1860 he tried to prevent Alabama from seceding. However, once the Confederacy was an accomplished fact, and seeing the behavior of the Lincoln Administration toward it, Campbell went to serve his section and his state, to try to guide them through the folly, as he saw it, of their ways.]
When Lincoln did get around to nominating replacements, he took politics into consideration. But he also looked for men who would support the decisions he already was making -- many of them blatantly unconstitutional, to defeat the Southern rebellion. He looked for justices who would uphold his questionable policies, made in the name of a questionable war.
David M. Silver, in "Lincoln's Supreme Court," wrote, "Two main factors controlled the administration's appointments to the Court: Lincoln's demand that the selectees have sound views toward the great political issues of the Civil War, and the political forces that guided his selections. Lincoln did not regard legal training and judicial experience as primary requirements."
In fact, only two of the five men he raised to the bench had previous experience as judges. "President Lincoln demanded sound views on the war rather than extensive service in the state courts or the lower federal courts. Lincoln sought men who were trustworthy thinkers on problems of the war and men who were prominent in the professions of law. But he sought men whose selection would be good politics, as well."
The first was Noah H. Swayne of Ohio, a corporate lawyer with no office-holding experience. He was so little known outside the state that the big Eastern newspapers consistently misspelled his name ("Swain") for days after his nomination was announced. But the choice satisfied the powerful Ohio Republican party, as well as the big business interests in the national party.
Swayne also held sound views on slavery and secession. As Silver judiciously put it, "Justice Swayne firmly upheld the policies Lincoln deemed necessary to save the Union."
Swayne, like all Lincoln's appointees, continued to play politics, solocit favors, and canvass for pet causes after his elevation to the bench.
Lincoln's next appointment was Samuel F. Miller of Iowa, a powerful anti-slavery lawyer and politician. Lincoln chose him after a flood of pressure from Iowa political leaders, whose letters to Lincoln included some curious reasons. One said that, "as a jurist, [Miller] has no superior in the State," even though Miller had never been a judge. Another urged him as an "Earnest Patriot and conscientious Republican," and added emphatically that Miller "has never held a public office."
Once again the Eastern newspapers had no idea who he was, and for months they sometimes confused him with another Miller of Iowa, a former Whig Congressman.
Silver summed him up: "Despite the critical statement that Miller's 'preponderant qualification was that he was chairman of the Republican district committee at Keokuk,' selection of Miller was not out of harmony with Lincoln's concept of what qualified a man for elevation to the Supreme Court."
Four candidates lobbied hard for the third vacancy. The man who took the prize was the ultimate crony, if ever there was one: David Davis. Davis was a state judge in Illinois in whose courtroom lawyer Lincoln once had practiced. The two grew close, and worked together politically. Davis exerted himself mightily in Lincoln's 1858 Senatorial campaign and at the 1860 Republican convention, he led the stampede for Lincoln's presidential nomination.
When state election results came in in 1860, and showed the door was open for Lincoln to win the White House, Judge Davis was trying an important criminal case, but when he heard the good news he burst into jubilation right in the courtroom, kicked over a clerk's desk, turned a double somersault and adjourned the court until after the presidential election.
The letter-writing campaign on Davis' behalf frankly mentioned the political debt the president owed him. One asked why Davis should not be appointed, "especially when he was so instrumental in giving position to him who now holds the matter in the hollow of his hand?" Another wrote that the appointment of Davis would be pleasing "especially to the circle of your old personal friends." A third asked, "Now should not a man in power remember those men, and discriminate in favor of those men, who throughout life have been as true as steel to him. Is this not common justice[?]"
Lincoln must have thought so. He chose Davis.
Lincoln didn't always get his way from the Supreme Court, but on essential matters he did. And the generation that followed these appointments is reckoned one of the weakest in the history of the court.
It has been my impression that the 'high standards' for appointment to the Supreme Court really came about as a result of the opposition to LBJ's appointment of Abe Fortas, his close personal friend. Trotting out an acid test for any justice has been standard practice since then, for sure.
But as with standards for election to the presidency, standards previously included representation of the society ... and this nation may have a lot of other distinctions, but its society is not predominantly distinguished.
So representation includes all elements, high and low.
David Davis is a distant relative of President Bush; that's how he got the job.
I do think you do Judge Davis a disservice. Davis was certainly a crony in the sense of a close personal friend, but not in the sense that his appointment was was due solely to that friendship and without regard to qualifications.
Davis graduated from Yale Law School, when formal legal education was not common. He had been elected state legislator, helped write Illinois' 1847 Constitution and was elected judge for 14 years. Since Lincoln was self-tought in the practice of law, he would probably have learned academic legal issues practicing before Judge Davis. And unlike whatever legal counsel, President Bush has privately (and confidentially) observed in Harriett Miers, Davis would have had a public track record of his legal skills. Davis was elected judge three times.
If only Miers was such a crony.
Did any of these people ever have experience in constitutional law?
This is what concerns me more than her lack of a judge. Roberts had only been a judge for a narrow period of time, but he is known for spending lots of time in or around supreme court cases. So he knew how the system well, and he had a good understanding of constitutional law. This made him an ideal candidate.
Miers is not only missing a background which shows experience in constitutional law, but has shown herself to be ill-informed. For example: she refered to "the proportional representation requirement of the Equal Protection Clause as it relates to the Voting Rights Act". It turns out this clause does not exist.
Lincoln['s] ... enemies were safely out of the union and could do him no harm.
You haven't looked at domestic politics during Lincoln's terms, I gather? If these nominations didn't generate political fire, it must be because Supreme Court nominations just didn't; it certainly isn't because Lincoln didn't have adversaries eager to make hay at his expense.
Agree with Craig here. Lincoln certainly had his opponents within the North: the Democrats, who nominated McClellan in 1864 to run against Lincoln, and the Radicals in his own Republican party. If Farragut hadn't won in Mobile, and Sherman conquered Atlanta, in time to influence the election (& undercut Lincoln's critics' cries that the war was a failure), 1864 may have turned out quite differently.
Miers has withdrawn. Be careful what you wish for. The next nominee will be filibustered, period. Time for the Conservatives to put up or shut up, they better have the votes to break the impass, one way or the other. Somewhere in Hades, Pyrrhus rolls his eyes.
Bush is really screwed now that Miers has withdrawn. If he tries to please the radical right wingnuts who put him in office and helped erect the (now crumbling) rampart around him with a hard-right idealogue selection, they will be fillibustered, with full public support I would think (...39%).
On the other hand, if he wants to avoid that, he'll try to find a compromise appointment, which might lead down a similar road as Miers, although in this case the appointee will need to have some actual, you know, credentials, besides having their noses up King Georges rear-end.
In either case, the Miers selection, coming on the heels of Katrina, is yet another embarrassment to Bush, and has given the public another peek behind the curtains to see the way his "operation" runs, provoking widespread scorn, and concern, for the way our Federal government has been assembled.
This guy is cold, half-eaten toast, and we are all lying here with our asses sticking up in the air just waiting for whichever malevolent force wants to come along and do us the final indignity of a good buggering.
Go ahead, try to tell me why I shouldn't be angry about this...
Edith Brown Clement. Solid professional background. Confirmed to the Court of Appeals in 2001. Like Roberts, no track record on Roe. Some track record on more libertarian conservative issues. Been on short list the last two times. And she's from New Orleans . . .
Good call Shaw, although I suspect the Sandra Day comparisons would be rife. The conservatives want fire and brimstone and i have a bad feeling anyone acceptable to the democrats will de facto be considered a cop out. Anyone that hasnt been to a pro-life rally probably wont be acceptable. Still, its the mainstream republicans that are going to matter at the end of the day, and Clement is easy to rally around.
"the radical right wingnuts who put him in office"
"with full public support I would think (...39%)."
"credentials, besides having their noses up King Georges rear-end."-
"This guy is cold, half-eaten toast, and we are all lying here with our asses sticking up in the air...."
"Go ahead, try to tell me why I shouldn't be angry about this..."
Why bother?
Mark, I agree, but let's be honest. Kennedy and company are going to try to blackball anyone who doesn't fit their narrow deifinition of "acceptable", no matter what the administration chooses. It is not reasonable or rational, and it is a complete bastardization of the constituitional principle of "advice and consent". I agree that there are plenty of ideologically similar Republicans, but we know that a filibuster will come, most likely, regardless of the qualifications of the candidate; why pretend that it won't? Why pretend that there is anything that the administration can do to present an "acceptable candidate" that falls outside the leftist Marxist view of "mainstream"?
I don't think that necessarily means we want "fire and brimstone", but rather that we know we're going to have it whether its fair or not, and as we are the majority, maybe its time to stop collapsing like a house of cards every time the minority, who have proven themselves over and over to be hypocrites and obstructionists, rattles their saber.
Numero 10.
Boo hoo hoo. I was really hoping to hear from someone with the balls to stand up and defend their voting for Bush and their continued support during his implosion.
But don't think of me as someone seeking advice...rather, think of me as the itinerant pet owner who ambles by to rub your noses in the stinking pile of dog crap you have helped to create.
Now that's gotta be a metaphor you tough talkin' Republicans can relate to, eh?
Johnny, I agree with you, but there is a political element here that goes beyond this nominee. If Republicans are seen as pushing an idealogue down the Democrats throat immediately after the Dems bent over backwards with Roberts and Miers, there is going to be a major shift in perception in the country over who is being unreasonable. That (combined with drunken sailor spending) will likely cost the Republicans the House in 06, possibly the senate, and very likely the White House in 08. We are in the middle of a war every bit as dangerous as the Cold War ever was. Handing Howard Dean's party the government back in exchange for one Justice is not an option right now, which i feel confident has been Bush's guiding star during this whole process.
Worse, if the Republicans blast through a nominee with full democrat opposition, President Hillary is simply going to blast through 2 or 3 more Ruth Guinsbergs. Not a very good trade imo.
Stanhope,
I see your side is still having difficulty with this concept of "losing". But jibes and sneers are the only thing that remain. Your movement, which once boasted it would rule the world through the vanguard of history now calls it a triumph when they can camp out on a Texas field, or when a lunatic woman chains herself to the White House. Or crows when a constitutional convention is postponed for a week. Or salivates with Pavlovian euphoria at the idea of an indictment over the "outing" of a CIA agent whose neighbors knew she was an agent. Celebrates when rockets miss an LHA. But the sneers are empty now; the mantle threadbare.
In a way the only power you had was that of cant and obscurantism. People are waking up now, and your leadership trembles at the power of the "extreme right wing". You can hear it in their voices at Miers withdrawal. In the catalogue of human ideas the Left will rate no higher than......well, that pile of dog crap you mentioned. Good luck with all that, then.
Mark,
I'm sorry, I could have sworn that you wrote that the leftists "bent over backwards with Roberts" Is this the same Justice Roberts who was accused of favoring abortion clinic bombers, or that was not qualified for the court because A) was Catholic B) adopted his light skinned kids, C) used the word "amigo" in a brief for Ronald Reagan, D) grew up in a neighborhood with very few blacks or Jews, or E) wanted to repeal the civil rights act, even though in his brief, he was quoting the words of his client, and it was actually IN QUOTES. Bent over backward? Mark, you can't possibly be serious.
Don't misunderstand, Mark. I understand your point, and it would be a good one, if it were true. But first of all, I find the idea that anyone in the Democratic party bent over backward for Roberts absurd on its face. I think the majority of Americans recognize who have been the obstructionists here. Miers' nomination was good for one thing, however: it exposed the hypocrites on the Right, who really want to do the same thing the Democrats do, just with a different set of criteria.
President Hillary is simply going to blast through 2 or 3 more Ruth Guinsbergs
sigh. This is the thing that drives me crazy about conservatives. Whatever Democrat is in the White House is going to do that ANYWAY, no matter what the Republicans do or don't do. They've been doing it every time they're in power. Conservs are in power, they need to start acting like it. And an Edith Clement Brown or a Miguel Estrada are hardly "ideologues" The only reason we even use that word is because that is the term that has been attached to them by the Democrats. Why? Because they don't fit their definition of who should be on the court.
If the Republicans aren't smart enough to recognize what got them elected, which is lower taxes, hope for smaller government, and a judiciary that is not activist, and adheres to the letter of the Constitution, then they will get voted out (Although I think it will be Senate first, and then the House) and so much the better.
The highway spending pork was an outrage. Not addressing the border/homeland security adequately is an outrage. There are plenty of things the Republicans are doing wrong. Insisting on or even forcing a filibuster won't be one of them. Personally, I didn't have a problem with Miers one way or the other. Let them vote. If she were to be voted down, voted her down. But it doesn't endear her to me to hear Harry Reid defending her this morning. Quite the contrary, it says to me that the right decision was made.
I was really hoping to hear from someone with the balls to stand up and defend their voting for Bush and their continued support during his implosion
I voted for Bush and knowing what I know now, would still have voted for him. I have been highly critical of Miers and believe Bush was an idiot to nominate her, but you know what? This is a two-party system and you vote for the better of two candidates (or the lesser of two evils). Kerry would have been a disaster for the War in Iraq. Commander in chief counts for more than 1/9th of the Supreme Court.
Johnny, im absolutley not disagreeing with you. I know the democrats gameplan and they will push as far to the left as they can, practically. Thats the trick. Clinton especially is first and foremost a creature of politics. That is why the right must never lose sight of how easy it would be to lose the edge in the electorate. I'm not talking about votes and districts, im talking about perception. If the moderate, suburban, 'soccer families' start seeing Republicans as no better on spending, corrupt, and socially extremist, they will follow the American instinct to 'vote out the bums' and give the Dems another try. That could mean the entire Congress and Presidency, and the scenario we're afraid of comes true. Republicans need a coallition, and that means treading cautiously in hot button issues like justices. Miers was a good pick because she was a stealth candidate. Conservatives are insisting, not so much on a good nominee, but on a fight. Its a fight they can win in the short term, but would be disaster in the long term. Dems are going to rally around Republican hubris and social extremism in the next election, and it is their most powerful argument. I dont want them using their best argument, i want them running as the peacenick, tax raisers they truly are at heart. Remember 94, is all i can say. The stakes are too high at this time of the day.
Mark, good points. I guess the Miers nomination can be looked at in one of two ways: 1) as a candidatae to defuse an issue that ultimately is, in the great scheme of things, less important than some other pressing isues or the way I look at it, number 2) a nomination that gave the illusion of the majority party going out of its way to avoid a fight that was brought by the unconstitutional behavior of the minority party. To me, it looked more like number 2, (little bit of a double entendre there :) )and while I had no particular specific problem with Miers, there is no need for the party with such a significant majority to have to behave that way.
I totally am with you on where the stakes are. My problem is that the whole issue of "perception" is an issue not because of the behavior of conservatives, but rather because we are allowing one group of people to frame the terms of the debate. Indeed, instead of actually debating issues, we find ourselves debating (or defending) caricatures of what conservatives believe. Take our friend, stanhope, above, for example. Oh, and stanhope, speaking of a pile of dog crap....
Anyway, Mark, I think that the Republicans are shooting themselves in the foot, just not over this. Seeing republicans as no better on spending is a true picture of things, and the American people would be justified in thinking so and voting accordingly. That's a Republican problem of behavior. Seeing Republicans as racist, religious zealots who want to ram "ideologues" down your throat and want to involve themselves in your health care decisions is a false illusion created by Democratic demagogues. That's an issue of image, not from behavior, but of failure to challenge that image on its merit. That failure to challenge that image as the lie that it is is in my mind, similar to the passive aggressive mentality that I feel was the Miers nomination.
Here's my bottom line, Mark. If you can't act like a majority, you won't be one very long. That doesn't mean you have to lord it over the minority, but I think there are better ways to reveal the left for who they are that doesn't involve compromise to the point of counterproductivity. Let them explain to their constituents why it was critical that they filibuster the black woman or a Hispanic man out of the court. Let them put their money where their mouth is. Part of Bush's rise from mediocrity to brilliance is that he was able to give his critics just enough rope to hang themselves, making himself into a star in the process. He seems to have stopped doing that for some reason. He needs to start doing it again.
#18)If you can't act like a majority, you won't be one very long
Don't you think the biggest problem with the Republicans is that they seem to be convinced that they are the eternal majority? Spending is growing rampant, corruption is rife (at least, based on the number of indictments and arrests that have been made in the last 6 months).
Let's face it a good Republican party demands a good Democratic party to hold them in check. A good Democratic party needs a good Republican party to keep them in check. The democrats SHOULD oppose any candidate they can convince their consituents to be against. Vice versa for the republicans.
I think Bush was trying to thread the needle with Miers. His pollitical capital is running out, and he wanted to appease his base (with a wink) while presenting a 'moderate' candidate to bring his image to the center. Unfortunately, she was also an obvious crony. She was so inept I almost have to wonder if Bush understands what the supreme court really does.
///Let's face it a good Republican party demands a good Democratic party to hold them in check. A good Democratic party needs a good Republican party to keep them in check.///
This is the only statement you made that I agree with, alchemist.
The democrats SHOULD oppose any candidate they can convince their consituents to be against. Vice versa for the republicans.
Speaking of not knowing how the supreme court works, this is ridiculous. There is a word for what you re suggesting, alchemist:
Tyranny.
No, I don't agree with Justice Ginsberg on 99% of her rulings. That doesn't automatically disqualify her from the court. She was a well qualified candidate, despite her odious views, which was why she was approved 96-3. The Republicans recognize this, the democrats apparently don't. The fact is justices are going to vote their conscience, even though they deny it. We all want our own ideologues on the court. The difference is I don't think someone who disagrees with me can't be a Supreme Court Justice, whereas the democratic Senators do.
Spending is growing rampant,
Funny how this never bothered Democrats when they controlled the budgetary process for 40 years. As I said, its a problem. Totally agree. And it will come back to haunt Republicans far more than Democrats
corruption is rife
Lol. One indictment after three grand juries, one arrest (of the same person) and one SEC investgation. Yawn, wake me up when there's a conviction. Or when anyone feigning outrage over the "culture of corruption" learns the definition of "due process". The Democrats need to stop believing their own press.
Don't you think the biggest problem with the Republicans is that they seem to be convinced that they are the eternal majority?
No, I can only assume that your last sentence is defined as "doing things that the minority doesn't want them to." That, my friend, is why majorities are majorities. Because their views differ from the minority. How willing has the democratic party been in the past to "reach consensus" with Republicans? The only time you hear the word consensus from the Democrats is when they have no power.
The Republicans gained power for a reason. And that reason was not so they could fold like a house of cards every time the minority objects to one of their goals that got them elected. As for Miers, I'm sure she was a very fine attorney, but when you're the NFL, you don't need to scout good players at division three schools when there are Heisman candidtaes staring you right in the face.
I was wondering if we could move the discussion out of present day partisan political fighting for a moment and get back to Lincoln and his appointments to the court -- but, of course, as Callimachus noted, Lincoln's appointments were rather partisan.
In fact, the appointment that was not mentioned in this entry is perhaps the justice most involved in politics -- the appointment of Salmon P. Chase as Chief Justice. Chase wanted to be President more than anything in life; his burning desire was the reverse of Henry Clay's "I'd rather be right than President."
Salmon P. Chase had been Governor of Ohio and Senator from Ohio and served Lincoln as Secretary of the Treasury. He served as Chief Justice from 1864 to 1873 and his tenure in that office is generally considered to have been undistinguished. He could not overcome his lust for the White House and continued to involve himself in Republican politics even after his elevation to the court.
"...the generation that followed these appointments is reckoned one of the weakest in the history of the court."
Now, there's a problematic statement. Reckoned weak by who? By legal conservatives, or judicial activists? By people who think Scalia is a good judge, or by people who think Blackmun was?
In the case of Judge David Davis, why do you call him the ultimate crony? A true "crony" is generally someone who has no distinction for office except that he knows someone.
Davis was, in fact, an experienced judge. Does the fact that he was also a first rate political operator disqualify him somehow? Does the heavy lobbying on his behalf indicate that he was unfit? Davis had a lot of friends. You seem to imply that this lobbying convinced Lincoln to appoint Davis, but Lincoln himself knew Davis very well.
Swayne and Miller, who knows what kind of qualifications they had - but at least they were abolitionist Republicans, and not more distinguished Southern slave-beaters. You might recall the situation in the country at the time. The finer points of constitutional law were not the number one priority just then.
Finally, I don't know what kind of point you're making about Lincoln's appointments. So, what kind of a point are you making?