Dispatches from the Creation Wars

Shooting Down the New Confirmation Spin

The latest development in the Harriet Miers confirmation fight is this ridiculous talking point from the White House, via James Dobson:

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

This is their new spin, to try and turn this around and blame it all on the other side for “politicizing” the confirmation process and scaring off all the good conservatives. Sorry, I don’t buy it, not in a million years.

First of all, think about what it says about the group of conservative judges who have been groomed and put into position to ascend to the Supreme Court, a group that includes Michael McConnell, Samuel Alito, Michael Luttig, Emilio Garza, Edith Clement, Harvie Wilkinson and other prominent judges. It says that they’ve spent their entire lives working toward the pinnacle of acheivement in their field, they’ve already gone through one and usually two confirmation hearings, and now they’re going to give up because they don’t think they can withstand the scrutiny. Plausible? Not hardly. These folks are the cream of the crop, all brilliant and accomplished and they didn’t get to the top by being milquetoasts.

Secondly, we just watched John Roberts, one of the best known of the judges who’ve been warming up in the conservative bullpen, fly through the confirmation process with the greatest of ease. Despite the efforts of the usual suspect groups on the left who will oppose any conservative judge, Roberts was virtually untouchable and he garnered the approval of half of the Democrats and all of the Republicans. And there is absolutely no reason to think that it would have been significantly harder for any number of other highly qualified nominees.

Michael McConnell was confirmed for the court of appeals unanimously and has won high praise from both sides of the aisle. He is not only an appeals court judge, but continues to publish as one of the foremost legal scholars in the country. 300 law professors, including most of the prominent liberal legal scholars in the nation, wrote an enthusiastic letter of support for his nomination to the appeals court. He clerked for William Brennan, one of the greatest of all liberal justices in the court’s history. He would be shuttled through the process by his own Senator, Orrin Hatch, senior Republican on the judiciary committee.

Michael Luttig is viewed as every bit Roberts’ equal in terms of intellect and temperament and he has been groomed for the opportunity since his early days as an attorney, guided by former Chief Justice Warren Burger, clerking for Burger and for Scalia and named to the appeals court 14 years ago. Even Laurence Tribe acknowledges that “his intellectual acumen and his literary gifts are of a very high order” and further says, “I like and admire him a great deal personally.” On the tenth anniversary of his appointment to the Federal bench, his clerks presented him with an American flag that had flown over the Supreme Court building. He displays it on the wall of his office. Does this sound like a guy who would have turned down a nomination to the nation’s highest court?

Much the same could be written about several others. Most of those candidates would have sailed through the confirmation process as easily as Roberts did, or at least not much more difficultly. With 55 Republicans in the Senate, there’s virtually no chance of a nominee not being confirmed unless they turn out to be a Robert Bork, and there are no Borks in that group. Bottom line: this latest talking point is complete nonsense. There’s no way you’re going to convince me of that short of hearing directly from those named above that they turned it down. This one just doesn’t get past my BS detectors.


  1. #1 Mike Heath
    October 16, 2005

    Dobson could be reffering to Owens; she is clearly one of the incompentent conservatives on Bush’s short list that would have been held up to ridicule, and rightfully so, I’ve never read such poorly drafted opinions as hers.

    Ed – love your site!!! I’ve been a reader for many months now; this is my first comment, mainly because you pretty much hit the ball out of the park on every posting.

  2. #2 raj
    October 16, 2005

    This is interesting, but I’ll just remind you that two of the most respected jurists of the 20th century, Learned Hand and his cousin Augustus Hand, never made it to the US Supreme Court. Both of them should have. They did sit on the most influential federal appeals court bench, the 2d Circuit, for years, though.

    US SupCt nominations are largely political. Appeals court nominations are less political, but they have become more political in recent decades.

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