Thursday, November 14, 2002

Andy writes:
Today GWB lashed out at the Christian right, and alienates his grassroots by supporting Islam. Bush probably thinks he no longer needs conservatives. After all, there is little to no pressure by conservatives on Bush, and it is badly needed. Reagan was criticized by conservatives more than Bush is, despite Bush's far more liberal record.

Roger writes, "25?! There are probably 25,000 better than what we've got on the US SC."

Maybe so, but there are only a handful who have the expected credentials for an appointment by Bush to the Supreme Court. The person must have been appointed by Reagan or the first Bush to the Court of Appeals. The only exception would be White House counsel Gonzales, who may maneuver himself into contention (and he's unacceptable). Moreover, the person should have born after, say, 1944.

I surveyed the top third of the Circuits for this appointment: D.C. Circuit, Fourth, Fifth and Seventh. I could only find 7 judges who met the above qualifications (and not obviously disqualified for other reasons)! They are:

D.C. Cir.: no one.
Fourth Circuit (VA): Michael Luttig, Karen Williams
Fifth Circuit (TX): Edith Jones, Jerry Smith, Rhesa Barksdale, Emilio Garza
Seventh Circuit (IL): Frank Easterbrook.

What are the odds that GWB picks another Souter? Pretty high, I'm afraid.

Roger writes, "I bet that most of the SC judges in US history did not come from the US court of appeals."

7 out of 9 of the current SC Justices were appointed from the federal Court of Appeals, including 6 out of the last 6 appointments. It is highly unlikely that Bush will select from elsewhere, though he may unacceptably pick Gonzales from the White House (citing the selection of Rehnquist as procedural precedent).

Roger wrote, " Weren't O'Connor and Souter state court judges? I don't think Rehnquist and Warren were even judges at all. ..."

O'Connor and Warren were picks to fulfill campaign promises, not a situation GWB faces. Souter was a recently confirmed federal appellate judge, but that approach is not acceptable now because the Senate has only been confirming liberal-leaning judges. There are no Rehnquists in the White House, so that precedent is unacceptable also. Also, I think Rehnquist was a replacement choice rather than a first pick, which guaranteed him an easy ride.

I just checked out the Tenth Circuit, which is Cheney's old hunting grounds. Not a single appellate judge meets the selection criteria!

So out of the 5 top Circuits, there are only 7 candidates for the Supreme Court. And that's without even investigating their background or what they've written.

In the next few months, conservatives should be publicly vetoing some of those 7 candidates who look like future Souters. No need to endorse anyone, but there is a need to veto some.

Roger writes, "There is precedent for non-judges and non-lawyers."

Attach a probability that GWB will do that. Less than 1%?

Roger writes, "Gonzalez was a state appeals judge."

Yes, and now he's GWB's top attorney in the White House. He's got a 20% chance of being picked, which is as high a chance as anyone else. Conservatives need to strenuously veto him now, rather than complain after the fact.

Roger wrote, "Any Repub who kills a big nomination would get the Bob Smith treatment."

Right, which is why we need not fear moderate Republicans straying on a conservative pick. What we should be fearing and preventing is a moderate pick by GWB in the first place.

Republicans in Congress are not going to hold GWB's feet to the fire. Unelected conservatives have to do that.

I see that Daschle is finally advocating something, and Pelosi was elected. Looks like the Democrats have concluded that "me-too" is a losing strategy. No kidding. Daschle and Pelosi should out there on the extreme, attacking Bush every day with the help of the press, and then Gore can appear like a very reasonable guy. This will soon get interesting. GWB will need conservatives to win in 2004.

John sends this Wash Times column about judicial appointments. It says that Reagan appointments made the DC Circuit a "voice of authentic judging". I disagree. Because of their idiotic rulings, ten years of Msft litigation has failed to resolve the fundamental questions at issue. Eg, what can Msft bundle with the operating system?

Andy comments:
Already, John read a recent article in the Washington Times by a self-described conservative (Bruce Fein) who (1) praises conservative judicial appointees, (2) encourages Bush to replace Rehnquist with an Hispanic (e.g., liberal Gonzales) and (3) insists that Roe v. Wade cannot be overturned. Got that? As a purported conservative, he seeks to defend and preserve the illogical Roe v. Wade, and beats the drum for Souter-like appointments by Bush.

Conservatives are captured by RINOs (CINOs? -- conservative in name only). There is no meaningful conservative pressure on Bush for Thomas or Scalia-like appointments to fill the expected vacancies. The odds of Bush replacing Rehnquist with someone like Souter rises each day. Conservatives originally backed Bush for one simple reason: the Supreme Court. It's not looking like it was worth it.

Fran Eaton's internet operation in Illinois is very impressive. Every day I receive and read hard-hitting, insightful email about Illinois political news. She demands answers from Illinois politicians, and her operation is followed by talk radio. (You can subscribe at Occasionally I see interesting stories about Alton.

My view is that the internet is the reason for the country moving markedly to the right the past two elections. TV news is significantly less influential now. Internet influence on politics will only continue to grow, and it is far more substantive than TV or even the newspaper.

I agree with him that Roe v. Wade is likely to be undisturbed. He cited Miranda warnings where Rehnquist believed that the original Miranda case was wrongly decided, but when Rehnquist got a chance to reverse it, he voted to extend it instead. He might do the same with Roe if given the chance, and so might his replacement.

A hard-core pro-lifer might say that a fetus is a person under the 14A, and any abortion is unconstitutional. No one with that view will be allowed to wear a robe.

Reversing Roe requires Stevens, Rehnquist, and O'Connor to all retire in the next year, and to all be replaced by Scalia clones. Not likely. Bush already has a record of appointing pro-abortion judges (like Gonzalez).

Andy writes:
Roger writes, "I agree with [Bruce Fein] that Roe v. Wade is likely to be undisturbed. ..."

Bruce Fein implies that he doesn't think Roe should be disturbed, even though it is illogical and contradicts the unanimous Supreme Court decision in the physician-assisted suicide case. It's as though we have to forever pretend 2+2=5 because some people like it that way.

What isn't going to last forever is the 50-50 split in Congress and the Court on Roe. It's either going to swing pro-Roe, and cause the overruling of court decisions in related and analogous areas, or it's going to swing anti-Roe, and overrule it. The country's leadership isn't going to remain balanced on the fence forever, any more than the compromise over slavery could last forever.

If Bush follows Fein's advice and picks a pro-abortion judge like Gonzales, then I bet Lieberman beats Bush in 2004.

As any student of the Lincoln-Douglas debates in Illinois know, Douglas was a master at riding the fence on the slavery issue. Then, in Freeport, Lincoln asked him this simple question: given the Dred Scott decision, can a territory exclude slavery before becoming a state? If Douglas answered "no", then he was finished in Illinois, a free state. So Douglas said "yes", but that ended his support in the South. The Democratic Party split, and Lincoln was guaranteed a win in 1860 without even campaigning in the general election.

Fein thinks Bush can survive in picking a judge who supports preservation of Roe. Impossible. The growing pro- and anti-abortion forces won't permit a fence-straddler. The bankruptcy bill's demise just demonstrated that.

Roger writes, "Fein says: 'But Roe vs. Wade (1973) will remain undisturbed.' It sounds like a prediction, not an opinion of what he thinks ought to happen."

Predictions often reflect preferences. But to remove any doubt, Fein gives his reason: "the right to an abortion has become too firmly fixed in American culture to be altered by nine unelected judges in lieu of a constitutional amendment."

But Roe was promulgated by "nine unelected judges in lieu of a constitutional amendment"! Surely Fein agrees the Court has the power to reverse itself, as it has done in for many other big issues like segregation and mandatory pledges.

Anyway, how about explaining the recent concession by Leahy/Daschle to allow 2 conservative judges to be confirmed now? They were approved by the committee on voice vote so that no liberal Senator had to go on record supporting them.

The two judges had prominent Senate sponsors. It looks like a ploy to induce Bush to pick a Senator or someone with close Senate ties for the Supreme Court. Such a pick is more likely to be a Souter than a Scalia.

John responds to Andy:
Is Andy predicting civil war?

Lincoln rode the fence just as much as Douglas. As it turned out, Lincoln was more successful - so it would be more accurate to say Lincoln was the "master" at riding the fence.

It was the Democratic party split that enabled Lincoln to become president. Specifically, when the 1860 Democratic convention nominated Douglas, Southern delegates walked out and held another convention at which a pro-slavery Southerner was nominated.

I don't foresee any similar Democratic split in 2004.

The bankruptcy bill was defeated in the House by a unique left-right coalition. That bodes nothing for the Senate which must confirm judicial nominees. Despite the two additional Republican Senators, there is not a pro-life majority in the U.S. Senate.

Yes, Andy is getting carried away here. Abortion just isn't that big an issue. Abortion law is just not going to change significantly in the foreseeable future. If I were appointing judges, I would pay more attention to dozens of more important issues.

John responds to Andy again:

On abortion, John writes, "I don't foresee any similar Democratic split in 2004."

No, of course not. It's the Republican Party constituency that threatens to split if GWB picks another Souter. That's arguably what happened after Souter himself was picked! But now, the focus is 100 times greater. And unlike Bush I, who was elected by a wide margin, GWB's thin support was based on the Supreme Court.

There is no Republican party constituency that threatens to split from GWB in 2004, because doing so would guarantee the election of a pro-abortion Democrat.

John concludes, "The bankruptcy bill was defeated in the House by a unique left-right
coalition. That bodes nothing for the Senate which must confirm judicial nominees."

The Senate will confirm GWB's picks to the Supreme Court. That's not the issue. The issue is who those picks will be. If GWB picks a Souter, then his core constituents in the country, the House, and the Senate will abandon him, as the core House Republicans just did on the bankruptcy bill.

I hate to repeat myself. The votes are just not there in the Senate to check Bush or abandon him. Look what happened to Bob Smith.
As to overturning Roe, Roger writes, "Reversing Roe would be a gigantic admission of error. It is now the SC's most famous opinion. Law profs teach it as one of the pillars of constitutional law. It has been repeatedly affirmed for 30 years. ..."

I doubt any of that really matters to a single Justice, or to anyone else. Roe is equivalent to "2+2=5", and it will fall as soon as 5 Justices look at it logically.
On trade, John writes, "You still have not cited any specific way in which Reagan embraced free trade or repudiated protective tariffs, and I deny it. "
OK, here is a specific way: Reagan signed the US-Canada Free Trade Agreement on Sept. 28, 1988.

Canada!!! That is so non-controversial that is doesn't deserve the name free trade. When people talk about free trade, they mean trade with third-world dictatorships in Latin America and the Far East whose wage or cost levels are about 2%-5% of the U.S.

John writes, "Almost all U.S. world trade is with illegitimate governments!"

Not true. Our largest trading partner, Canada, is legitimate. So are Europe, Japan, India, Mexico, etc. Yet GWB insists on spending much of his time trying to boost trade with illegitimate China, Saudi Arabia, etc.

The main difference between China and Saudi Arabia on the one hand versus India and Mexico on the other hand is that the latter countries select their "president" via mass democracy. To call that the test of legitimacy is a liberal idea, a neocon idea, not a conservative idea. There is much more to government legitimacy than just having one mass election every 8 years to "elect" your dictator.

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