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LiLPoH: A Letter That Won't Be Written

Jack Rich has a draft ready, though, just in case.


Clarence Thomas No Rubber Stamp

Geraldine Ferraro just claimed on the Fox News Channel's Hannity and Colmes show that Clarence Thomas is merely Antonin Scalia's rubber stamp on the Supreme Court.

Since neither Alan Colmes nor Rich Lowry (substituting for Sean Hannity) contradicted her there, let me set the record straight.

David Garrow, in his 2004 New Republic review of the Thomas biography "Doubting Thomas," by Ken Foskett, addressed this allegation directly (go here for the New Republic version or here for a Sheridan: Con-Law blog reprint):

The popular fiction that Thomas [is] nothing more than the hapless dupe of Justice Scalia,' says ["Doubting Thomas" author David] Foskett, betrays 'an obvious racist subtext.' 'Because I am black, it is said that Justice Scalia has to do my work for me,' Thomas mockingly observed in 2000. The widespread perception is rooted in the simple truth that 'he is really the only justice whose basic approach to the law is the same as mine,' Scalia told Foskett. Yet during the court's 2003-2004 term, Scalia and Thomas voted together in only 73 percent of cases, and six other pairs of justices agreed with each other more often than Thomas and Scalia did.
But even when Thomas and Scalia do vote alike, how can Ferraro know that Scalia is not following Thomas, rather than Thomas following Scalia?

Or anyone "following" at all?


Bill O'Reilly v. Charles Rangel

Here's hoping Bill O'Reilly's O'Reilly Factor staff puts the video of O'Reilly's interview of Rep. Charles Rangel (D-NY) tonight on one or both of O'Reilly's's two websites (here and here).

The interview, in my view, was one of those watershed moments in which the thinking of a person or political movement is peeled back like an onion to reveal the, well, onion inside.

O'Reilly was questioning Rangel about his September 22 comparison of President Bush to Bull Connor. O'Reilly asked Rangel the simple question about fighting poverty: What do you want President Bush to do? Rangel dodged it so O'Reilly asked again and Rangel dodged it repeatedly. As it goes on you see Rangel look increasingly cornered and O'Reilly increasingly incredulous that Rangel can't handle what ought to be the world's easiest softball question.

Charlie Rangel has been in Congress since 1971 - time enough to develop a point of view on the best way to fight poverty.

Conservatives have claimed for some time that the Congressional liberals have no policy agenda. This interview could be Exhibit One in their case.


Ed Gillespie, Conservatives & Miers: Setting the Record Straight

OK, retracted.

I just received a gracious phone call -- especially considering what I have been writing -- from Ed Gillespie. He made a compelling case that he was not referring to conservatives when he referred to some critics of the Harriet Miers nomination with the terms "sexism" and "elitism," but to others who said things that, when he described them, did sound rather sexist and elitist.

Ed says he understands that conservative concern is based on "philosophy and not knowing what [Harriet Miers's] is." I believe him when he says he didn't mean us with those words -- frankly, it didn't sound like something Ed Gillespie would think. Ed is, after all, definitely one of us. (Conservative, that is.)

I suppose my own rhetoric on this issue could be, well, a little calmer, when one gets down to it.

Thanks for the call, Ed. I appreciate it.


Ronald Cass: Conservative Critics are Whiners

Admittedly, the field is competitive, but I think this is the most obnoxious criticism yet of those of us who are wary of taking a chance (again!) with the Supreme Court. (Do read the whole thing.)

Ed Gillespie, step aside.

This essay by Ronald Cass of the Committee for Justice concludes:

It's time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should - that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.

Now it's time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.

Better to whine now than when it is too late, Mr. Cass.

The President has his constitutional perogatives, and we citizens have ours: Dissent.

"Presuming" a stranger would be great on the Court hasn't worked out too well in the past. Pardon us for noticing. And we also can't help noticing that many White House allies are substituting attacks on conservative critics in place of explanations about what this nominee believes. Given that the latter would be more persuasive than the former, we can only suppose they have no idea. This is not encouraging.

Forget Roe v. Wade for a moment -- what are Harriet Miers's views on the Commerce Clause? I knew Roberts's because I could read them.

How about an essay telling us about her beliefs rather than us about ours?

Who knows, by the time the confirmation hearing is over, we may love this lady. Or not. (Most likely, we'll still be guessing.)But we don't love having to guess and no matter what adjective gets thrown at us -- elitist, snob, sexist, whiner, or whatever is coming next -- we aren't ever going to love having to guess.

Would these White House people have us go to the voting booth and make choices about Senate and Congressional candidates without knowing anything more than an outline of their resumes and endorsements from one man and from others who make it painfully clear they don't know much? I certainly hope not.

A Supreme Court nomination is no different.


NewsBusters: "Snobbery" Allegations Should Be Sourced

I have a post up at NewsBusters analyzing a Christian Science Monitor article on the Miers nomination.


Europe, Once Again

The EU says foreign governments will be taking control of the Internet away from the United States while the UK Guardian claims claims "there is little the U.S. government can do but acquiesce."

Socialists. They just can't help themselves. See something good and they just have to nationalize it.

Hitler was like that, too.

Addendum (10/8): Adam Thierer of the Progress and Freedom Foundation and Wayne Crews of the Competitive Enterprise Institute have a piece on this in the Wall Street Journal (subscription and registration required). It inckudes this ominious warning:

A global Internet regulatory state could mean that We Are the World -- on speech and libel laws, sales taxes, privacy policies, antitrust statutes and intellectual property. How then would a Web site operator or even a blogger know how to act or do business? Compliance with some 190 legal codes would be confusing, costly and technically possible for all but the most well-heeled firms. The safest option would be to conform online speech or commercial activities to the most restrictive laws to ensure global compliance. If you like the idea of Robert Mugabe setting legal standards for everyone, then WSIS is for you.


Doesn't She Know?

From the Houston Chronicle, this quote from Senator Lindsey Graham, R-SC, to critics of the Harriet Miers nomination:

Be quiet for a little bit and listen, just shut up for a few minutes and give the lady a chance to find out who she is.
And he's apparently a supporter.


Charles Krauthammer Says: Withdraw Miers Nomination

Charles Krauthammer takes President Bush to the woodshed over the Harriet Miers nomination. Not just once...

...nominating a constitutional tabula rasa to sit on what is America's constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom.
...but over...
To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.
...and over...
The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.
To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.
There's lots more.

Krauthammer also zings Congressmen and our 28th President.

He must have been highly motivated.


On Miers, White House Arguments Improve -- Somewhat

My sense is that the White House is having a better day today than yesterday in making pro-Harriet Miers arguments. In one conference call I listened in on, which, as it was not off the record, you will probably not read about in the Washington Post, there was a tantalizing hint that one of the reasons the White house wants Miers is that Bush wants someone in Court conferences who understands the national security implications of certain court cases.

If this is truly a motivation (as it may not be), it is a much better argument than "trust me."

On the flip side, another argument trotted out by a Miers supporter should be retired immediately. That argument is that Miers is a Texan, that Texans above all believe in loyalty, therefore, Miers will always vote on the court in a manner loyal to George W. Bush.

Putting aside the dubious reliably of the Texan-as-superhero-archetype as a guide for making Supreme Court appointments, this contention utterly misses the point. We don't want a nominee who will be loyal to Bush or any person or political party. We want a nominee who will be loyal to the Constitution as written.

In fairness, it should be noted that the person making this argument is not on the White House payroll, and it is impossible to tell on a telephone conference call if the Administration representatives participating were cringing as this argument was being made.

Addendum: If this American Spectator piece by John Wohlstetter is correct, the national security angle may not work for Ms. Miers. Meanwhile, the Capitol Hill newspaper The Hill is noting parts of a piece on this blog in which a young conservative who used to work at the White House (who also is the son of Congressman Jim Ryun) describes his effort to get a Christian Christmas card message approved by Harriet Miers.


Whiff of Stupidity, I'd Say

**Scroll down to the end for a link to Ed Gillespie's reply to this post**

The White House treats women like morons by pointedly treating us as so dumb we need quotas, as if we women can't stand on our hind legs as well as men, and then calls us sexist for noticing.

As noted by the Washington Post, this quote comes from an off-the-record meeting (that one reads about in the newspapers all the time), and is genuine:

White House adviser Ed Gillespie suggested that some of the unease about Miers "has a whiff of sexism and a whiff of elitism."
I've always had a high opinion of Ed Gillespie; that anyone representating the White House told conservatives something this dumb, however, tells me the White House is desperately clutching at any argument it can find.

Get a clue, White House. Tell us about your nominee's judicial philosophy. Or, if you cannot, withdraw the nomination.

Insults are no substitute for what really needs to happen here.

Addendum: As of now, the afternoon of Oct. 6, Laura Ingraham has a poll on her website (scroll down, on the left) asking visitors to describe conservative opposition to Harriet Miers as 1) elitist, 2) sexist, or 3) based on principled concerns.

I know this poll is on her website because I listened to Laura's radio show this morning. This is something I do because I like Laura's show. I just thought I would mention this in case folks thought I have, White House-like, a personal quota system mandating that a certain percentage of the talk radio hosts I listen to have to be women.

Addendum #2 (10/7/05): Go here to see that Ed Gillespie wasn't referring to conservatives when he used the words "sexism" and "elitism."


I'm Hoping Ted Stevens Would Be Worth as Much as a Fish

Given this story, I'm wondering how much the federal government would pay me to paint my house to look like Senator Ted Stevens.


Defeatism in Defense of the Constitution is No Virtue

Not for the first time, my friend Mark Tapscott is bringing a fresh approach to a discussion, in this case, the Harriet Miers confirmation debate.

Mark says Miers isn't the issue, the "weak-kneed Senate GOP leadership is":

...while I sympathize mainly with those who believe Bush has missed an historic opportunity by not nominating a Brown, McConnell or Luttig, it appears to me most everybody is missing the fundamental point.

That point is this: As long as the Senate GOP leadership refuses to confront head-on the Democrats' abuse of the filibuster and end it, the Democrats have a veto if they choose to use it. And choose it they will for any nominee short of one with an undeniably perfect record - John Roberts - or one with no record at all, Harriet Miers...

...Put simply, with Frist and the Senate GOP leadership, we get a Roberts or a Miers. There is no in-between.

Two Robertses would have been better, but another fundamental point is missing:

Why don't we let the Senate liberals vote down our best candidate? It's not like we don't have more.

I ask you: Who wins if the Senate Democrats filibuster one well-qualified originalist nominee after another?

The answer: America, the American people, the court and conservatism.

Such a strategy would result in: 1) the educational value of a national debate about why the filibusters were occurring (philosophical differences), and 2) the eventual confirmation of a well-qualified originalist, because there are more qualified candidates than the left can possibly filibuster.

Just ask the Federalist Society.

Yes, by the cautious standards of Washington politics, my prescription is a high-risk strategy, but is it a higher risk than to one to the nation of nominating and confirming an unknown? Not on your life (or, rather, not on the lives of one million little babies annually who need us to be right on this so that they might be born).

And, yes, I know we would be going into battle with the Republican Senators we have, rather than the Republican Senators we wish to have. But after the third or fourth successful filibuster, if it actually came to that, the words "Republican primary" would start to resonate pretty strongly amongRepublican Senators.

Even if Ms. Miers is 100 percent solid philosophically and intellectually, as President Bush says and very likely truly believes she is, he can't know -- because she can't know -- how well she would be able resist the media vilification and public pressure that gets put on any prominent public figure. However, there are solid, intellectual originalist candidates who have been in the arena (in Teddy Roosevelt's immortal phrase), and, as such, have been tested.

To repeat, tested. Not, "I've worked with her for ten years so trust me on this, why don'tja?"

I think it was and remains a great and possibly permanent loss to the nation that Robert Bork never joined the Supreme Court. But that loss was magnified by the fact that the justice we got instead was Anthony "Swing Vote" Kennedy -- a man, I remind everyone, who was said at the time of his nomination to be a sure vote for overturning Roe v. Wade because, by all reports, he is and was deeply religious and a member of a pro-life church.

(Gee, I think I've heard that phrase somewhere else recently.)

At the risk of being derided by "GOP-Uber-Alles" crowd, including bloggers who post that there is a direct correlation between length of service in the conservative movement and defeatism (the reverse actually is true -- good grief, folks, look around once in a while), let me share that I was on Capitol Hill (and working hard on these issues) when Judge Bork was defeated. I was outside the Senate waving a "We Love You Clarence" sign (and doing other things) when Clarence Thomas was drafted into what became the precedent that conservative Supreme Court nominees must be pure as the driven snow (my illusion to the color white is intentional; the Senate treated the conservative Clarence Thomas more harshly because of his race) while liberal Presidents can debauch interns in the White House and lie about it under oath. I was working on Supreme Court nominations when George W. Bush was still drinking and getting rich off baseball. And -- as I am not the issue -- literally millions of movement conservatives, in one way or another, were there, too, writing letters to Senators, donating to conservative candidates and groups, educating their fellow citizens, running for office, and more. Some of them were even studying and practicing constitutional law so that, at some future date, when a God-fearing, Constitution-respecting President needed good candidates for appellate courts, there would be good candidates to choose from. So I, and I know others, don't particularly care for the notion that we in the conservative movement have to sit still and take whatever George W. Bush throws at us, or that he and we together (I do believe Bush is with us in his heart) have to settle for unknown nominees for no greater reason than fear the left may win a round or two in the Senate.

I say to the GOP-Uber-Alles crowd: It is not those of us who think we can do better than a stealth candidate who are the defeatists.

It is those of you who are afraid to fight for the Constitution.

In his clarion call of conservatism, Barry Goldwater declared that moderation in the pursuit of justice is no virtue. Could defeatism in defense of the Constitution be any different?

Addendum 1 (10/5/05): One of the White House talking points on Ms. Miers is that because Miers has served at the President's side for 10 years, she fully understands and is dedicated to his focus, perspective and goals. That argument reminds me of this quote...

For seven and a half years I have helped the President conduct the most difficult job on earth.

...from this speech.

We all know how that turned out.

Addendum 2 (10/5/05): Gail Russell Chaddock of the Christian Science Monitor has an on-the-nose piece in the October 6 edition on conservative reaction to the Miers nomination. Chaddock captures the sentiment very well.

Noteworthy quote from Paul Weyrich: "I can tell you that ... the grass roots are just heartbroken by this nomination."

Ms. Chaddock says that, prior to the Miers nomination, the White House gave "key conservatives... a list of three names, including [Miers'], and asked for comment. For the most part, there wasn't any."

I think the White House needs to expand its list of key conservatives, and pronto.


Professor Bainbridge: Not Trusting Bush

I wish I disagreed with Professor Bainbridge on this.


Pardon Us for Noticing

I read this essay in the American Thinker after hearing Rush Limbaugh read part of it on the air today.

When Rush read it, this section lept out at me:

There is a doom-and-gloom element on the Right which is just waiting to be betrayed, convinced that their hardy band of true believers will lose by treachery those victories to which justice entitles them. They are stuck in the decades-long tragic phase of conservative politics, when country club Republicans inevitably sold out the faith in order to gain acceptability in the Beltway media and social circuit.
I think the timing is off here.

Conservativism was NOT in its "tragic phase" when O'Connor and Kennedy were appointed. It was NOT in its "tragic phase" when Souter was appointed.

What it was in was its "making bad Supreme Court appointments" phase. True, that phase started earlier (much earlier) but most of us are not stuck in the Eisenhower era, or an earlier one.

Just how many Kennedys, O'Connors and Souters are we supposed to put up with before noticing that the presidents conservatives elect often seem to have bad judgement in making Supreme Court nominations?

It seems to me that quite a few of the folks who complain that the Right isn't thrilled about having an unknown as a nominee are doing nothing more than complaining that we've noticed a trend here.

However, changing the subject somewhat, once I read Thomas Lifson's piece, another part of it caught my eye even more:

Ms. Miers embodies the work ethic as few married people ever could.
Good grief! I was a workaholic before I got married -- or so I thought. Before I got a husband and children, I didn't even know what work was.


Energy Hog: A Bad Play Then, A Worse Play Now

Thoughts from Peyton Knight:

On July 15, 1979, Jimmy Carter delivered what became infamously known as his "malaise" speech. That evening he peered out into family rooms across the country, and lectured Americans for their "self-indulgence and consumption." Carter intoned, "We've discovered that owning things and consuming things does not satisfy our longing for meaning. We've learned that piling up material goods cannot fill the emptiness of lives which have no confidence or purpose."

Of course, Americans weren't to blame for the energy crisis. They hadn't done anything wrong. The "material good" that was most important to them was a simple tank full of gasoline -- such a thing being necessary to work, produce, and feed their families. They weren't "longing for meaning," they were longing for a leader who recognized America's growing productivity and accompanying thirst for energy. They weren't to blame for the energy crisis, and they knew it. They let Carter know it shortly following his speech.

Regrettably, the Bush Administration seems to be reprising this broken play.

Yesterday, U.S. Energy Secretary Samuel Bodman unveiled a new government mascot dubbed "Energy Hog." The creature lives at A quick trip to the site reveals its creators' clear intent. Americans need to be shamed, perhaps even humiliated, into giving up basic daily accoutrements because an energy crunch is looming.

The front page of the site displays eight, grotesque, cartoon hogs, and a profile of each reveals that hog's energy sin. Ivanna Hamm's sin is "lots of hot liquids." Sammy Swine is to blame for using "old, broken-down appliances." Freddie (who lacks a clever last name) is guilty of harboring "high-class chandeliers" and light bulbs. There's even a Kelvin Bacon who has a dastardly penchant for setting the thermostat in his home to a personally-desired temperature.

Soon, the Energy Hog will be popping out in newspapers, billboards, radio, and television. Bodman is also urging Americans to drive slower to save gasoline. Fifty-five miles per hour, to be exact. Slower than the maximum speed on many interstates and highways. This is a solution to our energy woes?

Hurricane Katrina revealed the very delicate balance between America's energy supply and energy needs. There is little or no room for error.

Yet, it has been thirty years since an oil refinery was built in America. Over that same period, our gasoline use has increased 25 percent. Arcane environmental laws and the strict ideologues that exploit them have crippled our nation's ability to meet its growing need for fuel. America simply must increase its refining capacity.

Now is a time for leadership, and real solutions to what has become an embarrassing situation for the world's lone superpower. Instead, we have a cartoon hog.


Access to Consumer Products a Fundamental Right?

From Reuters:

San Francisco Mayor Gavin Newsom, who became internationally known for his campaign a year ago to legalize gay marriage, said on Monday he considered wireless Internet access a fundamental right of all citizens.
At the rate this guy is going, I would not be surprised to see him proclaim my children have a fundamental right to have a puppy.

When David Almasi shared this Reuters article with me, I at first thought it was a parody. Now I just wish it was.


Black Conservatives Speak on Miers Nomination

As promised earlier today, Project 21 has released a variety of comments on President Bush's handling of the historic opportunity to nominate a Supreme Court justice to replace the retiring Sandra Day O'Connor.


Hugh Hewitt: Conservative Camps on Miers

Hugh Hewitt on some of his fellow conservatives being disappointed in the appointment of a Supreme Court appointee whose views on the Constitution are largely unknown, as headlined on

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.
What about emotionally-fragile conservatives who understand governing for the long term? Where would they stand on Miers?

The issue is not the character of the critics but the beliefs of the nominee. About which we know little.

Addendum (10/4): ProfessorBainbridge's post on Hugh Hewitt's take on movement conservatives and the Harriet Miers nomination is extremely through and highly recommended. I wish I had written it.

Addendum #2 (10/6): The Paragraph Farmer is worth reading on this.

Addendum #3 (10/6): John Rabe says:

Hugh Hewitt keeps claiming that true conservatives don't understand that President Bush is governing for the "long-haul." No. It's Hewitt who doesn't understand conservatism. Fighting these battles and setting a vision, even against difficult odds, is governing for the long-haul. Expedience always reaps only a short-term benefit.
Also, his post here really sums up the feelings of many conservatives.

Addendum #4 (10/6): I just got around to reading the transcript of the Hugh Hewitt-Stephen Bainbridge debate on Harriet Miers on Radioblogger, and its got the best line I've seen yet encompassing the conservative criticism of Bush's decision to nominate a stealth candidate. Quoting Abraham Lincoln speaking of General George McClellan, Professor Bainbridge says of Bush:

I gave him this great army, and he won't use it.
As history records, it was only after Lincoln replaced McClellan with a fighter (U.S. Grant) that the North won the war.


Leftie Latinos Vy for Quota Slots

This is what happens when you play diversity politics (from the AP):

President Bush's decision to make White House counsel Harriet Miers his second Supreme Court nominee upset Hispanic groups that had hoped to see the nation's first Hispanic Supreme Court justice.

"President Bush has again ignored highly qualified Latino judges, attorneys and law professors who could serve the nation ably on the United States Supreme Court," said Ann Marie Tallman, executive director of the Mexican American Legal Defense and Educational Fund, after Miers' nomination was announced Monday...

"The failure of this administration to nominate a Hispanic judge to the Supreme Court is a slap in the face to all those highly qualified Hispanic judges that dutifully serve on our federal courts across the nation," said Raul Yzaguirre, former president of the National Council of La Raza. "Our community continues to contribute to the greatness of this nation and yet, we are ignored for a vital role on our third branch of governance."

When you play interest-group politics, no one is happy, and no one wins.