Judge Alito’s College Days

ALITOinCollege.jpg
“Sam intends to go to law school and eventually to warm a seat on the Supreme Court”
Orin Kerr links to this profile of Samuel Alito from his college days – he graduated from Princeton in 1972. Judge Alito was in ROTC, a fact that will no doubt unsettle the plaintiffs in the Solomon Amendment case if he is confirmed. And yes, that’s a picture of him in college. Not that, er, I should talk.

DePodesta Evaluated

Chris Lynch looks at Paul DePodesta’s moves as Dodgers GM. The record is a pretty solid one, not worthy of getting him fired, although you can argue that, for example, the Derek Lowe and Jeff Kent signings are worse in combination than taken separately, given that Lowe requires a good middle infield defense. (On the other hand, Lynch doesn’t discuss the non-signing of Adrian Beltre, which doesn’t look that bad right now). And it does seem that DePodesta botched some of the other parts of the job, specifically backing out of deals that other GMs thought they had with him, a problem that may have resulted from the Dodgers’ decisionmaking process. That smells like a combination of rookie mistake and perhaps meddling by ownership.
On the whole, I’d be glad to have DePodesta running my team. And, hey: he was a great #2, and Jim Duquette is gone . . . the Mets could do far worse than trying to get him on board, although he is doubtless looking for another #1 job.

Not Bashing

Unsurprisingly, preeminent appellate law blogger Howard Bashman is thrilled with the nomination of Judge Alito, a judge he knows well; see here, as well as more on Judge Alito from Bashman here, noting Judge Alito’s role in changes to the Federal Rules of Appellate Procedure.

Alito’s Way

At 8 a.m. this morning, President Bush is scheduled to nominate a successor to Justice Sandra Day O’Connor for the third time (bear in mind that John Roberts was initially tapped to replace Justice O’Connor), and it will, in fact, be Judge Alito of the Third Circuit. As I’ve said, Judge Alito isn’t necessarily my first choice, but he’s unquestionably qualified, with a wealth of experience (bio here), including 15 years as a federal appeals judge and 13 with the Department of Justice, first as a trial-level prosecutor for four years in New Jersey, then in DC with the Solicitor General’s office and as a deputy assistant Attorney General during the Reagan years (1981-87), then as US Attorney for New Jersey from 1987 to 1990. He’s a fine choice and a guy who shows every sign that he’ll serve with distinction and, like John Roberts, can be expected to exceed the existing standards for Supreme Court nominees in terms of his accomplishments and brainpower.
Harry Reid is promising a fight. One popular caricature of Alito is the monicker “Scalito,” hung on him by some journalists, but I gather he’s really not as similar to Antonin Scalia as conservatives would like or liberals would fear; we’ll learn more in the days to come, but it does seem that the nickname plays off of his ethnicity and journalistic laziness rather than any genuine similarity in temperament, style, or declared philosophy.
More Alito links here, here, here, here, and here.
UPDATE: Welcome visitors! Look around the site, this is just the tip of the iceberg of posts on the Alito nomination.

Alito and Casey on Abortion

The buzz still seems to favor Third Circuit Judge Samuel Alito as the likely next judicial nominee. Judge Alito’s not necessarily my first choice, but he’d be a good guy to go to war behind, if the Democrats prove intent on a war, which they may if they are calculating that Bush is weak and can be beaten regardless of the nominee’s quality. That’s not an insane calculation, although if that’s the tack they take, the Democrats should realize that they are picking a fight that has at least the potential to play directly into Bush’s best hope for re-energizing his base and regaining his lost momentum.
Anyway, Ground Zero in any battle over Judge Alito would be his dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, which didn’t reach the more explosive question – addressed by the Supreme Court – of whether Roe v. Wade should be overruled. Instead, Judge Alito found that the Pennsylvania statute at issue was constitutional under existing standards set forth in prior Supreme Court decisions. As Patterico explains about that conclusion:

[A]s Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.

(Emphasis in original).
But what’s even more interesting about potentially staging a big fight over Alito’s ruling in the Casey decision is the identity of the defendant, the governor who signed into law and defended in court the abortion restrictions that the Senate Democrats would presumably be describing as “extreme,” “outside the mainstream,” etc. – Bob Casey, the Democratic then-governor of Pennsylvania. And, of much more urgent interest, the father of the Democratic candidate challenging the most vulnerable of Republican incumbents in 2006: Rick Santorum. If the national Democratic party wants to make Judge Alito out to be a right-wing nutcase over finding that Bob Casey didn’t violate the Constitution, sooner or later someone is going to ask his son if he agrees. And that’s gonna be a question that will put him in an awfully bad position.
And Karl Rove will smile.

Initial Thoughts on the Libby Indictment

1. Were I Libby, I would choose a bench trial. The judge, Reggie Walton (not this guy) is a Bush appointee and was previously appointed to positions by Reagan and Bush I. I don’t know much about him and don’t mean to suggest he’d go easy on Libby, but that beats the heck out of a D.C. jury when you are a prominent Republican, and Jewish to boot (at least I assume Libby is Jewish).
2. Man, this is a strong indictment. I’ve seen perjury indictments in the past and know a little about the law in that area, and unlike the DeLay indictments, Fitzgerald has nailed down all the legal requirements here, such as detailing the precise statements and setting forth why Libby’s answers were material to the investigation.
Libby is basically accused of telling radically different stories to the grand jury and to investigators than the reporters (Judith Miller, Tim Russert and Matt Cooper) told, plus his story is apparently inconsistent with what he can be shown to have known based on his conversations with various government officials, including Dick Cheney, “a CIA briefer,” Libby’s “Principal Deputy,” Ari Fleischer, the Counsel to the Vice President, the Assistant to the Vice President for Public Affairs, and “Official A,” who may or may not be Karl Rove. If you are keeping score at home, that’s ten witnesses, and that’s before we get to the documents (Tom Maguire suggests that even Libby’s own notes may have contradicted him, and that his attorneys should have known this). If all this holds up – and given Fitzgerald’s reputation, I’d guess at least most of it will – Libby is toast.
3. Oh boy, the trial is gonna be interesting unless they find a way to close the courtroom (which would trigger immediate lawsuits). Just look at that witness list. Russert, Miller and Cooper have to be the star witnesses, but if Fitzgerald’s theory is that the untruth of Libby’s statements is shown partly by the fact that he had prior knowledge of Valerie Plame and her status as a CIA employee, and the first evidence of that is a conversation with Dick Cheney . . . how can Cheney not be a witness in this case?
4. Of course, as everyone has noted, the indictment states that Plame’s employment was “classified” but does not suggest that she was a covert agent at any time that would be relevant to any of this.
5. Libby’s behavior, if as alleged, seems incomprehensible unless (a) he was reckless in his certitude that reporters would never testify, (b) he’s a compulsive liar, or (c) as Andrew Sullivan suggests, he was worried that Cheney himself would get in trouble and decided to fall on his sword for the Vice President. I suspect (a) is part of the story, but I also think that, if it is the case that Cheney told Libby that Plame worked for the CIA and that started the ball rolling, Libby was indeed worried about protecting his boss, whether or not Cheney knew anything about her having ever been covert and whether or not Cheney had any further involvement in leaking her name.
6. For the record: yes, perjury and obstruction of justice are serious crimes. I believed that in 1998, and I believe it now. There is such a thing as a hypertechnical perjury charge, but this isn’t it, any more than the charge against Clinton was; in each case, the witness deliberately set out to obscure facts the tribunal was entitled to know (the difference being that Libby hasn’t also been charged with inducing other witnesses to lie). Good to see that many Democrats and liberals have now decided to agree with those of us who have taken that position all along (see this NR editorial).

Alito Rising

ConfirmThem has the latest hot speculation that Third Circuit judge Samuel Alito, nicknamed “Scalito” by some journalists, is going to be the replacement nominee for Harriet Miers, including word that Alito is in Washington this weekend. Alito is regarded as a real lawyer’s lawyer, much like Roberts, rather than an ideological type, but if Bush is – as has been speculated – mainly interested in getting nominees who will uphold Administration policies on detainees, he is probably reassured by Alito’s background as a prosecutor.
This profile has some observations on Alito, and reminds me of the fact that Alito probably benefits, in this process, from being close to Michael Chertoff, the Homeland Security chief who succeeded Alito as US Attorney for New Jersey and served briefly as his colleague on the Third Circuit.

Sun Tzu and the Art of Judicial Nominations

It’s too early to say with certainty what the long-range impact will be of conservatives leading the charge to cause the withdrawal of Harriet Miers’ nomination. But that won’t stop me from offering two lessons that President Bush should remember for the next nomination:
1. Competence is Non-Negotiable
Traditionally, the ideal with regard to the Supreme Court was to pick the best-qualified candidate from among the pool of judges, scholars, practicing lawyers and politicians who would be politically agreeable to the President. Granted, that ideal was often discarded in practice, but it was seen as desirable to follow it. There are many examples of such nominees – John Roberts, Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, Felix Frankfurter, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes.
There was always one countervailing pressure – the desire to pick a young nominee who would sit on the Court for a long time, the most obvious example of which was Clarence Thomas, who even after 15 years on the Court is younger than Harriet Miers and the same age as some of the candidates now being considered. As it turned out, Thomas was more than sufficiently skilled for the job, but his qualifications were admittedly somewhat thin at the time (I’ll leave for another day the issue of why Thomas’ qualifications were never as thin as Miers’; even then, once you accept the political reality that the first President Bush wanted a black nominee, there’s little doubt that Thomas was the most qualified black conservative available at the time).
But the Borking of Robert Bork led to a second, new pressure against a highly qualified nominee, a pressure that had not existed before: fear that a nominee with a long record of judicial decisions and scholarly writings could be picked apart, fairly or unfairly, on the basis of that record. Thus, scarred by the Bork disaster and successive attempts to repeat the experience at the appellate level, the last four GOP Supreme Court nominees (Souter, Thomas, Roberts and Miers) have all been “stealth” candidates with limited paper trails.
The collapse of the Miers nomination is being spun in some quarters solely as an ideological battle, but I think liberal law professor Jack Balkin said it best:

The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.

(Emphasis added). Of course, it goes without saying – as could be seen by the bipartisan nature of questions about Miers’ qualifications – that the competence issue was one that resonated with people accross the political spectrum, not only giving conservatives nervous about her philosophical leanings an excuse to oppose her without objecting solely on ideological grounds but also giving Democrats a free excuse to oppose her at a later date without political consequence if it became useful to do so.
Howard Bashman sounded a similar theme, calling Miers’ withdrawal “A victory for [conservatives; liberals; elitists; those who demand highly qualified nominees to the U.S. Supreme Court; bloggers]?” (See also this pre-withdrawal Bashman column). Andrew Sullivan, who’d been critical of the nomination, also focused on competence, which as you will recall was the deal-breaker for me and many others on the Right:

This is a big coup for the Washington conservative intellectual establishment and the counter-intelligentsia that has been deliberately built to tackle the left’s academic monopoly these last couple of decades. They wanted one of their own on the Court, and they’ll get one. At the very least, they have shown they have a veto against anyone too patently unqualified. Given Miers’ credentials and post-nomination performance, we may have reason to be grateful for their clout.

My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.
2. You Can’t Win A Nomination Fight You Aren’t Willing To Lose
Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called “nuclear option” and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the “nuclear option”; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle – the Senate and the public.
Because the public’s view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President’s troops in the field. A second corollary is that “the public” includes all those forces outside government that influence elected officials – the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.
Understanding, then, the conditions of the battlefield, let us examine the lessons of battle that President Bush failed to absorb with the Miers nomination but needs to remember in his next choice. First, consider the objectives and the alternatives. The President’s #1 goal should be to get a good nominee confirmed, with a good nominee being one who will be consistent with the stated philosophy of the President and his party and who, hopefully, will provide some measure of political benefit by confirmation – by satisfying the President’s supporters, by meeting the approval of potential supporters of the President’s agenda, and/or by reducing or dividing the intensity of the opposition.
But considering the benefits of confirmation is only half the battle. With fewer than 60 Senators committed to the same goals as the President in terms of philosophy and political objectives, the President must also consider the possibility of defeat and must choose a nominee who will also provide political benefits if the President’s nomination is defeated. Because the first rule of any potential battle is that weakness invites opposition.
Recall Sun Tzu’s dictum about war:

To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy’s resistance without fighting.

Unlike some conservatives, I don’t believe the President needs a fight over a nominee; while I would in some ways enjoy such a fight and think it would provide some benefits, I would be happier to get a good nominee confirmed without a fight, as with John Roberts.
But consider how Bush avoided a major fight over Roberts. Roberts was nominated not only with the intention of picking a nominee who would mollify the moderate Senators (liberal Republicans, conservative Democrats) who determine the immediate conditions of battle. His nomination also avoided a fight because, if Democrats had filibustered him, they would have looked terrible to the public. Because Roberts was so obviously qualified and had no ethical or other non-ideological problems, the only possible basis for opposing him was his judicial philosophy and the contention that his personal beliefs would impact that philosophy. Particularly given that Roberts presented that philosophy in fairly non-threatening terms, moderate voters would have seen this as pure obstruction. Meanwhile, Roberts was sufficiently reassuring to conservatives that he was viewed as a potential improvement on the court, and because of his relative youth, he was seen as a potentially lasting improvement. A filibuster would have ended up backfiring on the Democrats, and probably could not have been sustained for long in the face of public disapproval.
Thus, the Roberts fight would have been a good fight to lose – and precisely because it was a fight that would help Bush if he lost it, he never had to fight.
The Miers battle was precisely the opposite. Bush evidently regarded Miers as a good fight to win, as he would get a Justice he had faith in. But he failed to consider the fact that she was a terrible fight to lose. As Josh Marshall, looking across the battlefield from the opposite side, put it:

Nominations can have dynamics similar to those of political scandals.
We tend to think that the real key to a scandalee’s fate is how many mobilize against him or her. Usually, though, the key issue is whether and how quickly they can find some committed group to mount a defense. If that happens, and quickly, a scandal equilibrium can be reached, and an embattled pol can often withstand merciless attacks and revelations. With no true base of support, however, a career can rapidly collapse even if the opposition itself isn’t all that intense.
Miers’ nomination could fail in a similar way.
Sure, only a few Republican senators have expressed serious misgivings. But who is it exactly, either in or out of the senate, who is going to fight hard for this nominee?

Nobody but the President had a first-hand basis to believe that Miers was well-qualified for the job or to believe that Miers would improve the Court in terms of her judicial philosophy. Accordingly, if – as has happened – Miers was defeated, nobody but Bush himself would give Bush credit for having put forth such a nominee in the first place. Indeed, one of the predominant arguments of supporters of the Miers nomination from Day One was that Republicans should support her because the President had put himself in a position where it would be damaging to lose.
This, of course, was evident as well to Democrats, which meant that they knew from early on that they would have the initiative. With the President’s own supporters divided and many of his best troops switching sides, a battle would be on unfavorable turf for the White House. With non-ideological grounds available to oppose the nominee (not just competence but the plausible charge of cronyism), the Democrats could choose to oppose – if they wanted – at their convenience without fear of reprisal. With Republicans fighting among ourselves, Democrats could afford to wait and choose the time and place to come out in open opposition. In short, by picking a nominee whose qualifications were not self-evident and who had few genuinely committed supporters, Bush created a battlefield on which he could gain nothing by losing, while the Democrats would lose nothing by winning. By seeking compromise, he ended up compromised. In the end, he was better off retreating entirely from the field and picking a new nominee.
Nor was internal opposition to Miers at all unpredictable, especially given her thin qualifications; I’ll explore this at greater length another day, but while Republicans have as many different internal fault lines as Democrats, what gives the GOP a much higher level of cohesiveness is its priorities, the fact that conservatives and Republicans will accept a lot of things they don’t agree with as long as the party unites behind the Big Three of national security, lower taxes and the courts. Bush could win a battle over, say, expanding Medicare by invoking the need for party unity to accomplish more significant goals. But picking a Supreme Court nominee who is perceived as unacceptable goes to the core of the party’s purpose, and guarantees internal opposition. A Republican president can not hope to win a Supreme Court fight by expanding the battlefield to promise ofsetting benefits on other issues; he needs to win it on its own terms.
So no, in selecting his next nominee, Bush doesn’t needs to pick a fight. But he does need to pick a nominee who is worth fighting for. If you don’t pick a nominee you want to fight over, your opponents will know they can beat you by fighting.
As I have written before, I personally would prefer that Michael McConnell, the distinguished Constitutional scholar, veteran Constitutional and commercial appellate litigator, and now Tenth Circuit judge, be the nominee. McConnell might or might not provoke a fight, but it’s a fight on Bush’s terms, and one Bush could lose with his head held high on the basis of having picked a supremely qualified candidate (McConnell knows Con Law even better than Roberts), well-liked among Bush’s core supporters and respected by his opponents. If Bush prefers someone else among the many qualified candidates available, he should look for someone about whom the same could be said. But he needs to remember that only by choosing battle can he hope to avoid one.
UPDATE: RedState says Third Circuit judge Samuel Alito will be the pick. From what I know of him, that sounds good.

Revisionist History

The Democrats are now doing with the Harriet Miers nomination that thing they do best . . .
First, several prominent Senate Democrats are now claiming that they were just fine with Miers, so as to blame “the extreme right wing” for doing in her nomination. As Carol from ConfirmThem points out here and here, this is in direct contradiction to their own previous statements about Miers.
Second, Kos now takes the view that “Senate Democrats have helpfully emailed around the list below of GOP passion for the “up or down vote”. Too bad the Miers fiasco has taken away that talking point from their repertoire.” As John Cole explains slowly and in (hopefully) small enough words, there was not a peep from Republicans about blue-slipping or filibustering Miers, or even about delaying the scheduled date for her hearing. Those of us who called for her withdrawal simply felt that she deserved to be voted down, and thought the president shouldn’t let the bleeding continue for another month. This is not even close to the same thing as filibustering a nominee who has the support of a majority of the Senate.
And, hey: we were all told, repeatedly, by Miers’ friends that she was opposed to abortion and likely to vote to overturn Roe v. Wade. Are Kos and the Senate Democrats now admitting that they would have permitted a floor vote for, and possibly confirmed, a nominee who was – in Barbara Boxer’s words – “anti-choice”? Because maybe now they can retire that talking point too.

Sox Sweep NL Central Team, Break Curse

Deja vu all over again. Congrats to the White Sox and their long-suffering fans.
You have to feel for the Astros, who fittingly went down 1-0 in the last game of a season where they struggled all year to score runs; after staging four of the toughest postseason games you will ever see, all anyone will rememeber within a few years is that they go swept. Let the record show that, unlike the 2005 Cardinals and 1999 Braves, this team did not go down easy. Instead, in a season when they lost Carlos Beltran and Jeff Kent, started without Lance Berkman and had to weather most of the season without Jeff Bagwell, they fought their way through some of the most epic postseason games in history and ended up going further than any Astros team ever has. Well played.

Dewey Defeats Astros

An informed source sent me a copy of this morning’s Chicago Tribune print edition, which contains an early version of this Phil Rogers column, referencing events through the 8th inning of last night’s game, in which Rogers noted that White Sox pitchers like Dustin Hermanson were getting a chance to brush off the rust and get into the series, but concluding:
“It’s too bad for the likes of Geoff Blum that playoff baseball rarely features garbage time.”

22 Questions for Hugh Hewitt & Co.

Hugh Hewitt has propounded 9 questions for Miers critics on the Right:

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more?
Do Harriett Miers’ many accomplishments count for nothing?
Does Harriett Miers strike the commentator as a dedicated public servant?
Why not wait for the hearings to at least begin?
How important is it that Roe v. Wade/Casey be reversed?
Which five precedents does the commentator think are in most pressing need of reversal?
Does the commentator agree with George Will’s assertion of Justice Lewis Powell as the “embodiment of mainstream conservative jurisprudence?”
Is a neo-Borking underway which will discredit the conservative cause’s defense of its future nominees against similar, future attacks from the left?
What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate?

I was going to post a detailed response, but Patterico, Dale Franks and Jeff Goldstein have said much of what needs to be said in responding to Hewitt. I may update this post later with my own answers, if I get the time.
But here are some questions – 22 of them – for Hewitt and other Miers defenders on the Right (including Beldar, if he sees fit, although these don’t mainly go to Beldar’s arguments, plus Beldar is doubtless busy mourning the Astros at the moment). Thanks to Dale Franks for his input on the questions. They don’t capture all of the hard questions, but a lot of them for those of us who consider ourselves conservatives and, in general, loyal Republicans, and I would honestly like to hear how Hewitt and other Miers defenders (including those still in the “wait and see” camp) deal with these:
The Limits, if any, of Loyalty to Party Leaders
1. Some conservative/Republican pundits/bloggers honestly believe Harriet Miers would be, for various reasons, a bad Supreme Court Justice. Do you believe those pundits/bloggers should (a) state their concerns publicly, (b) keep their mouths shut, or (c) support her anyway?
2. What issues are important enough issues to justify taking an active stand against a Republican president or Republican congressional leaders? Are there any such issues, other than the war?
3. Is the GOP worse off because John Tower’s nomination for Defense Secretary failed and he had to be replaced with Dick Cheney?
4. Is the GOP worse off because Republicans and conservatives – pundits, bloggers, and elected officials alike – participated in forcing Trent Lott to step down as GOP Senate Majority Leader?
5. Is the GOP worse off because Ronald Reagan ran a primary campaign in 1976 against a sitting Republican president who then lost the general election by two points?
The Nominee’s Qualifications and What Will Be Learned at the Hearings
6. Does it matter if a Supreme Court Justice does not write clear and logical opinions?
7. Does it matter if a Supreme Court Justice does not know constitutional law well enough to avoid writing opinions in one case that will have unexpected bad consequences in other cases?
8. Even limiting the search to lawyers in private practice who have not been judges, and judging by the standards of legal reasoning and persuasive argument, is there any reason to believe that Harriet Miers was in the top 50 or 100 best lawyers in this country? If not, does it matter that she is not?
9. Please cite examples of Harriet Miers’ writings that demonstrate an ability to write and reason clearly. If no examples are available, please explain why we should believe that such examples will be forthcoming before her nomination will be put to a vote.
10. What concrete, relevant information do you believe we will gain at the hearings regarding Harriet Miers’ qualifications and philosophy that we do not already have?
Making the Left’s Arguments
11. Do you believe that continuing to tout Miers’ gender will, if she is voted down or withdrawn, make it impossible for President Bush to consider a male nominee?
12. Do you believe that continuing to tout Miers’ religion will, if she is voted down or withdrawn, make it impossible for President Bush to consider a non-evangelical Christian nominee?
13. Do you believe that it is important to have an evangelical Christian among the Justices? If so, why is this different from other religious tests, and is it proper for nominees to be questioned about their religion?
14. Are Harriet Miers’ personal beliefs on abortion relevant to your support for her? If so, is it proper for nominees to be questioned about their personal beliefs on abortion?
15. Of the three, which should the #1 goal in Supreme Court battles: (a) getting Justices who produce good results, (b) getting Justices who follow good legal reasoning, or (c) getting Justices whose confirmation provides political benefits to the party?
Back At You
16. How important is it that Roe v. Wade/Casey be reversed?
17. Which five precedents do you think are in most pressing need of reversal?
Role Models
18. Would you be satisfied with another Justice just like Lewis Powell? Potter Stewart? Warren Burger? Anthony Kennedy? Sandra Day O’Connor?
Consequences
19. Do you believe that a significant portion of the GOP base is unhappy with the Miers nomination?
20. If not, do you believe that the pundits/bloggers who are openly critical of the nomination – including Rush Limbaugh, National Review, The Wall Street Journal, Bill Kristol, Laura Ingraham, Charles Krauthammer and George Will – are important parts of the GOP’s ability to win public issue debates and elections?
21. Do you believe that the GOP is currently heading for a successful 2006 election cycle if it keeps doing the things it has done in 2005, or is a change of course needed to motivate the base and persuade swing voters?
22. Do you believe that a defeat for Miers would make it less likely that candidates with no paper trail will be nominated in the future, just as Bork’s defeat make it less likely that candidates with extensive paper trails and well-known public positions would be nominated? Would that be a good thing?
UPDATE: Xrlq offers answers.

And Going, And Going, And Going . . .

This post seems pretty relevant right now.
UPDATES: Really, I had harbored hopes of doing a detailed post on this game, but at this point I’m just gonna go to bed when this is done. I may add to this in the morning.
A few random thoughts from my notes about the game that probably did the Astros in:
*Adam Everett being hit with the pickoff throw in the 3rd definitely brought back memories of Reggie, one of the earliest World Series moments I vividly remember.
*”Scooter” explaining what the pitches are doesn’t bother me as much now that I’m watching the game with kids.
*When Crazy Carl was cursing out Oswalt, the cameras caught a little much of Garner telling Carl Everett, “f__ you motherf___”. At least, that’s sure what it looked like to me.
*Doesn’t Cliff Politte look just like Dann Florek, who’s played Capt. Cragen on two of the Law & Order shows? He even has the same grimace.
*Joe Buck managed to squeeze in a totally non sequitur Bill Buckner/1918 reference in the fifth inning.
*There was a huge roar from the crowd when Berkman was called for a strike on a check swing trailing 5-4 in the eighth; you could tell, at that point, that the crowd was palpably desperate.
*Why was I not surprised to learn that the three White Sox who made a Journey song the team’s theme song were Crede, Rowand and Pierzynski?

The Taste of Defeat

Bill Simmons asks:

Just throwing it out there to sidetrack the Baseball Crank’s day, but after Brad Lidge’s second demoralizing walkoff homer, is there any way to figure out the ratio of “Closer eventually bouncing back and becoming effective again” to “Closer who was never the same”? For instance, Calvin Schiraldi was probably the best pitching prospect in the Boston farm system before the ’86 playoffs – look at his regular-season stats in 1986 compared to everything that followed in his career. And what about Byung Hyun-Kim, Donnie Moore, Mitch Williams, Mark Wohlers, Tom Niedenfuer … really, the only guy I can remember who kept chugging along was Dennis Eckersley after the ’88 World Series. Anyway, let’s see what the Crank can dig up on this.

Well, I can’t well turn down that challenge, can I? So, I decided to walk through every example I could find of a relief pitcher blowing the big game in the postseason, and see how they fared the next few years. A few observations:
*I limited myself to the postseason and season-ending playoffs rather than the regular season.
*I limited myself to relievers. That knocks out both starters who blew the big one (think: Mike Torrez), and starters pitching in relief, which eliminated Ralph Branca in 1951, Ralph Terry in 1960 (Mazeroski’s homer), Bob Moose in 1972 (the wild pitch that ended Game 5 and the NLCS), Pat Darcy in Game 6 of the 1975 WS (the Bernie Carbo Carlton Fisk homer; Darcy never pitched effectively again), Jack McDowell in Game 5 of the 1995 ALDS, Kenny Rogers in Game 6 of the 1999 NLCS, Derek Lowe and Rich Harden in Games 1 and 3 of the 2003 ALDS, Tim Wakefield (the Aaron Boone homer), Jeff Weaver (2003 WS Game 4), and Esteban Loaiza (2004 ALCS Game 5). I also left off Aurelio Lopez (1986 NLCS Game 6), an aging veteran who was just the last guy left on a staff.
*I ended up limiting the study to 1972-present. Before that period, there just weren’t enough examples of relievers blowing the big game; starters tended to stay in longer, and before 1969 the postseason was a lot shorter. The only one that came to mind was Johnny Miljus throwing the wild pitch that ended the 1927 World Series; while Miljus struggled the next season and was swiftly put on waivers, I have a hard time thinking a guy who contributed to his team being swept by the 1927 Yankees was much of a goat.
*I noticed that the combination of more relievers, longer playoffs, more scoring in general and more home runs in particular has led to a massive upswing in recent years of huge game-breaking reversals of fortune in the postseason. Just in 2003-04 I counted 17 pitchers, counting guys who collaborated in big collapses including three in the 2003 Red Sox-A’s ALDS and four apiece in the 2004 NLCS and ALCS.
Here we go. I broke the pitchers into three categories: guys who survived, guys who were ruined, and guys who came away in some sense damaged but not destroyed.
Dave Giusti, 1972 NLCS Game 5:
Moose threw the wild pitch, but it was Giusti, the Pirates’ veteran closer, who blew the 3-2 lead in the ninth inning of game 5 of a best-of-5 series. Mitigating factor: the Pirates were already the defending champs. Giusti was just-y (hah!) fine the next season. Survived.
(Side note: Pittsburgh’s Game 5 starter, 19-game winner Steve Blass, mysteriously lost the strike zone the next season).
Rawly Eastwick, 1975 WS Game 6:
The 24-year-old Eastwick served up Fisk’s Bernie Carbo’s home run. (UPDATE: It has been pointed out to me that I went through the box score for this one too quickly and mixed up Eastwick and Darcy – it was Eastwick who gave up the big blow, the 3-run homer to Carbo that tied up the game in the 8th when the Reds were just four outs away from their first World Championship in 35 years). Mitigating factors: It was a tie game, and the Reds came back and won the next day. He was just as effective the next year. Survived.
Mark Littell, 1976 ALCS Game 5, 1977 ALCS Game 5:
Our first serial offender, Littell gave up Chris Chambliss’ home run and the following year participated with four other pitchers in blowing a 3-1 lead in Game 5. Mitigating factor: Littell wasn’t mainly responsible for the 1977 disaster. He was traded after 1977, but pitched effectively for two more years. Survived.
Rich Gossage: 1980 ALCS Game 3:
Gave up George Brett’s massive game-breaking homer to cement a humiliating ALCS sweep. Mitigating factors: the series was a sweep, and the Goose already had the 1978 playoff game and championship under his belt. Gossage would also allow a famous but less crushing home run to Kirk Gibson in the 1984 WS. Posted an 0.77 ERA the next season, and kept on cruisin’. Survived.
Dave Stewart, 1981 NLDS Games 1 & 2:
A few mitigating factors: these weren’t notably crushing losses, and the Dodgers won the series and went on to win the World Series. Stewart, a rookie reliever, pitched decently the next two years before the struggles that would land him in Oakland, but took years to establish himself as a star. We can count him as Damaged.
Luis Sanchez, 1982 ALCS Game 5:
Blew a 3-2 lead in the 7th inning of the deciding Game 5. A solid setup man rather than a closer, Sanchez continued in the same vein for two more years. Survived.
Lee Smith, 1984 NLCS Game 4:
The backbreaking Steve Garvey homer. Smith was fine. Survived.
Dan Quisenberry, 1985 ALCS Games 2, 4:
These were fairly routine losses. The Quiz had some decent years thereafter, but dropped from 37 saves in 1985 to 12 and never recovered as a big-time closer. May have been his age and workload, but the postseason shot to his confidence may have contributed. Damaged.
Tom Niedenfeur, 1985 NLCS Games 5 & 6:
The Ozzie Smith and Jack Clark homers; Niedenfeur, a successful closer through 1985, is the best comp for what has happened to Brad Lidge. Fell off sharply in 1987 and, while he had a few effective moments, was never the same again. Ruined.
Todd Worrell, 1985 World Series Game 6:
Major mitigating factor here – everyone blamed 1B umpire Don Denkinger, not the rookie closer. Worrell Survived.
Dave Smith, 1986 NLCS Game 3:
Gave up the walkoff homer to Lenny Dykstra. Survived. Teammate Charlie Kerfeld didn’t handle postseason failure that well, though.
Donnie Moore, 1986 ALCS Game 5:
The Dave Henderson, one-strike-from-the-World-Series homer. Moore was mostly hurt in 1987, but never recovered as a pitcher and eventually shot himself. Ruined.
Calvin Schiraldi, 1986 ALCS Game 4, 1986 World Series Games 6 & 7:
Schiraldi had only a half-season of good pitching under his belt before beaning in the tying run in the 9th in Game 4; Games 6 and 7, you know about. Ruined.
Bob Stanley, 1986 World Series Game 6:
The Steamah was running out of steam by 1986 anyway, and the Sawx converted him back to a starter the next year with disastrous results. He did pitch OK in 1988, but was done as an effective year-in-year-out pitcher. We can count him as Damaged.
Dennis Eckersley, 1988 World Series Game 1:
The Kirk Gibson homer. Eck, with a long and checkered career already behind him (a no-hitter, living through the 1978 collapse, battle with the bottle), shrugged it off and got even tougher. Survived.
UPDATE: An emailer also calls attention to Eck allowing a 2-run homer to Roberto Alomar to blow Game 4 of the 1992 ALCS.
Alejandro Pena: 1991 World Series Game 7:
Pena wound up losing the classic Morris-Smoltz duel. This brought an end to his string of effective years. He pitched OK in 1995, including in the NLDS and NLCS, before losing Game 3 of the 1995 WS in extra innings. We can count him as Damaged.
Stan Belinda, 1992 NLCS Game 7:
The Francisco Cabrera/Sid Bream game, which the Pirates led 2-0 when Belinda entered the game. Belinda was sent packing the following season, but his overall effectiveness in 1993-95 was about the same as in the prior three years. Survived.
Mitch Williams, 1993 World Series Games 4 & 6:
Before the Joe Carter game was Game 4, a raucous 15-14 affair where the Phils had a 4-run lead when Williams entered the game in the 8th. Williams was utterly Ruined and threw less than 40 more major league innings.
Mark Wohlers, 1996 World Series Game 4:
The Jim Leyritz home run. Wohlers actually saved 33 games the next year before falling apart, so we’ll list him as Damaged, but he was never quite the same.
Mariano Rivera, 1997 ALDS Game 4, 2001 World Series Game 7, 2004 ALCS Game 4:
Rivera survived blowing three huge season-killing postseason games, beginning with the Sandy Alomar home run, for the same reason Bill Gates survives losing $10 million in a bad day for Microsoft stock. Survived.
Armando Benitez, 1997 ALCS Game 6, 1999 NLCS Game 6, 2000 World Series Game 1:
This is the abridged version of Benitez’ regular- and postseason rap sheet of big game disasters. Let’s list him as Damaged; he’s never let the big ones stop him from being an effective closer, but you have to think the long series of big-game implosions are more than just a coincidence and have fed off each other.
Jose Mesa, 1997 World Series Game 7:
Two outs away in the bottom of the ninth, and Mesa couldn’t shut the door. He has had successes since then, but 1998-2000 was a stretch in the wilderness. We’ll list him as Damaged.
Tom Gordon, 1998 ALDS Game 4, 2004 ALCS Game 5:
The 2004 debacle was partly mitigated by the fact that four pitchers (including the revered Rivera) participated in it, and the 1998 game wasn’t a really unusual loss, nor a particularly close series. Gordon has Survived untouched.
Matt Mantei, 1999 NLDS Game 4:
The Todd Pratt walk-off series-ending homer. I’ll list Mantei as having Survived, since his on-and-off effectiveness before and after the homer were the results of injuries; he remained the same pitcher he was before.
Kevin McGlinchy, 1999 NLCS Game 5:
McGlinchy, a promising rookie, had the lead entering the bottom of the 15th of the Robin Ventura “grand slam single” game. I guess we can label him Ruined since he has pitched just 8.1 innings since then, although this was due to injury.
Aaron Fultz, 2000 NLDS Game 3:
As a rookie, surrendered Benny Agbayani’s walk-off 13th inning homer in a tie game, which turned the series. Fultz was the same mediocrity he’d been before for the next four years, before finding himself in 2005. Survived.
Arthur Rhodes, 2000 ALCS Game 6, 2001 ALCS Game 4:
The main one is the 2000 David Justice homer, but the game-tying Bernie homer in 2001 hurt too. The Colossus went on to the best years of his career in 2001-02, so he Survived. (Jose Paniagua, the losing pitcher in the Justice game, didn’t fare so well).
Steve Kline, 2001 NLDS Game 5:
The great Morris-Schilling duel was a tie game when Kline took over in the 9th. He has Survived allowing Tony Womack’s series-winning single.
Billy Wagner, 2001 NLDS Game 1:
Allowing a back-breaking homer to Chipper Jones in a tie game was actually the last of Wagner’s postseason failures; we’ll list him as Damaged, as his record is a smaller version of Benitez’ and he has kept blowing big regular-season games. Personally, I expect Lidge to follow the Benitez-Wagner career path.
Kaz Sasaki, 2001 ALCS Game 4:
Walk-off 2-run homer to Soriano in a tie game effectvely finished a 116-win team that was down 2-1 in the ALCS. Sasaki Survived, though he quit the majors two years later.
Byung-Hyun Kim, 2001 World Series Games 4 & 5:
Kim had a great 2002 and solid 2003 but hasn’t been the same since, and can’t pitch in the postseason or against the Yankees. Damaged.
Tim Worrell, 2002 World Series Game 6, 2003 NLDS Game 3:
Worrell was the chief culprit in the Game 6 fiasco, bounced back with 38 saves in 2003, then blew a 1-run lead in the 11th inning in the 2003 game. Survived.
Robb Nen, 2002 World Series Game 6:
Nen’s arm gave out over thr course of the last half of 2002, culminating with the Troy Glaus double that sealed the Giants’ fate, and he hasn’t pitched since. We’ll list him as Damaged, since this wasn’t really a psychological thing but he did see his career end.
Felix Rodriguez, 2002 World Series Game 6, 2003 NLDS Game 4:
Rodriguez was already in decline by 2002, and has Survived since his role in these two late-inning collapses.
Keith Foulke, 2003 ALDS Game Four:
Foulke found the best way to get over David Ortiz’ 2-run double that blew a 1-run lead in the 8th: join Ortiz’ team. His 2004 performance showed he Survived.
Kyle Farnsworth, 2003 NLCS Game 6:
The real goat of the 2003 Cubs’ demise was Farnsworth, not Steve Bartman or a tired Mark Prior. The mercurial Farsnworth recovered this year after a lousy 2004; while he’d always been inconsistent, we’ll label him Damaged.
UPDATE: An emailer points out that Farnsworth’s damage assessment should also include Game 4 of this year’s NLDS.
Francisco Rodriguez, 2004 ALDS Game 3:
Another David Ortiz victim. K-Rod had a rough postseason again this year, but I’ll count him among those who Survived.
(UPDATE: A commenter notes that I remembered wrong – it was Washburn who surrendered the Ortiz homer. K-Rod, of course, had also been the losing pitcher in Game 2. So you can discount him from the list if you like).
Dan Miceli, 2004 NLDS Game 1 2, 2004 NLCS Games 2 & 6:
The Edmonds homer was the final straw in a horrific postseason for Miceli, who was ineffective in brief action this season after being exiled to Colorado. For now, we can mark him Ruined.
Paul Quantrill, 2004 ALCS Game 4:
An overworked Quantrill ran off the rails in the middle of 2004, so his ALCS meltdown was just part of an ongoing process on his way from 2003 star to 2005 batting practice pitcher. We’ll mark him Damaged.
Jason Isringhausen, 2004 NLCS Game 5:
The Jeff Kent homer. Izzy’s team lived to win the series, and he had a career year in 2005. Survived.
Conclusion: Even using a fairly broad definition of “Damaged,” and understanding that in any season a certain number of successful relievers will fall off, we come up with a list of 22 relief pitchers (55%) who Survived a major postseason disaster, 12 (30%) who came away in some sense Damaged, and just 6 (15%) who were thoroughly Ruined by the experience, those being a mixture of young guys (Schiraldi) and established veterans (Niedenfeur, Williams).
UPDATE: Comments closed on this post.

The Tuskeegee Airmen’s Last Mission

At least, one would assume it’s their last, as the oldest troops yet are sent to Iraq:

Lt. Col. Herbert Carter is 86 years old and ready for deployment. . . . Col. Carter is one of seven aging Tuskegee Airmen traveling this weekend to Balad, Iraq – a city ravaged by roadside bombs and insurgent activity – to inspire a younger generation of airmen who carry on the traditions of the storied 332nd Fighter Group.
“I don’t think it hurts to have someone who can empathize with them and offer them encouragement,” he said.
The three-day visit was put together by officials with the U.S. Central Command Air Forces to link the legacy of the Tuskegee Airmen with a new generation.

Read the whole thing.

The Elitist

I have enjoyed and respected Hugh Hewitt’s contributions in the past, even if he is the Josh Marshall of the Right, a guy who is not just the most thoroughly partisan of pundits but one who seems to draft every post with the express goal of moving the chains in his side’s direction.
But Hewitt has really gotten on my nerves, as well as those of a lot of other conservatives, with his bareknuckled assaults on critics of the Miers nomination. Among these arguments, he has spent weeks arguing that those of us who want Supreme Court Justices to actually know constitutional law are misguided elitists; con law, Hugh argues, is just so simple that any half-decent lawyer can do it. It is, if anything, anti-democratic to insist that only those familiar with the body of constitutional law can serve on the Court. A curious argument coming from a man who teaches constitutional law, but that’s his position, and he’s stickin’ to it. Or was.
Saturday, comes Hewitt to take on conservatives concerned about Miers’ past support for racial preferences at the Texas Bar (Patterico has more on this topic). Here is his response:

I see many on the web are exercised about Harriet Miers’ support for affirmative action in the private setting of support for resolutions of the Texas Bar urging quotas in hiring at private law firms. It is not a policy with which I would agree either, but it also not a matter of constitutional law, unless under Brentwood the action of the Texas Bar in urging private firms to set strict goals has converted into a state action. Don’t know what Brentwood is? Or the state action doctrine? Not many people do. But those that don’t ought not to be confusing ConLaw with the private decisions of private firms while agruing that this policy makes Miers suspect on Bollinger. Now, if she supported a soft line on the Bollinger cases, that would be a legitimate area of concern, but not the Texas Bar resolutions.

For a guy who thinks Supreme Court Justices don’t need to know Con Law, Hewitt sure is quick to use his own expertise in the area to pull rank over pundits who don’t know Con Law.
UPDATE: Jonah Goldberg makes the point succinctly as to why the requirements for having informed opinions is lower, not higher, than the standard for getting the job: “Ben Affleck deserves an Oscar more than I do, but that doesn’t mean he deserves an Oscar.”

Game Two Notes

Mr. Lidge? Mr. Lidge? Mr. Niedenfeur on line one.
Early in the game, my 8-year-old son predicted that the game would go extra innings, the Astros would score and take the lead, and the White Sox would then rally and win. Now, mind you, this is the first year he has followed the baseball standings (as opposed to just watching individual games), and when the White Sox jumped out to a big lead early in the regular season, he kept saying they were going to win the World Series, and I kept explaining to him that no, they really aren’t that good. Bear also in mind that he was insisting during the early innings of tonight’s game that Scott Podsednik was the White Sox’ best hitter, and asking how many home runs he had hit this year.
I may never again convince him that I am right and he is wrong.
I thought the Red Sox last year had the hammerlock on the record for most bad baseball karma reversed in one postseason, but really, what more can break the Pale Hose’s way? Jermaine Dye gets hit on the barrel of the bat with two outs and very mistakenly awarded first base, and does the blown call pay off? Next batter, BAM! Konerko hits a grand slam. (You can’t even get odds right now on Konerko signing an extravagantly large offseason deal with the Mets and batting .246 with 7 home runs at the 2006 All-Star Break).
You know, with the beard and all, Willy Taveras certainly looks like Frank Taveras.
You gotta give some serious credit to Jeff Bagwell for triggering the Astros’ game-tying ninth inning rally by singling off Bobby Jenks. Bagwell didn’t really look any less overpowered than last night, but he managed to fight a pitch into center field, and that was enough. And that game-tying slide by Chris Burke was just amazing – it was like a Lance Johnson slide. You couldn’t duplicate the way Burke managed to land with his body in front of the tag and the hand that actually touched the plate behind the tag. It’s one of those reminders of how elevated the quality of postseason baseball is; it’s practically a different game from what you see in April.
Humorous Joe Buck quote of the night: calling Jose Vizcaino (career OBP: .318; career high in slugging: .397) a “professional hitter.” Of course, then McCarver brought back ugly memories of the 2000 Subway Series . . . I was looking back in the Win Shares book one day and noticed that, in 1995, Vizcaino led the Mets in Win Shares. When Jose Vizcaino is your franchise player, you have problems. But he came up big tonight, for what it was worth for one exciting half-inning.

Fried on Miers

My constitutional law professor weighs in on the Miers nomination, and unsurprisingly, his views and priorities are about the same as my own on the perils of a Justice who can’t write:

A justice without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose suited to those intricacies will flounder in a number of ways that would be disastrous for the law. Such a justice might rely on instincts undisciplined by clear analysis and therefore over time spin a web of confusion which increasingly will entangle that justice, the justice’s colleagues and a perplexed public. Or that justice might fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the court.
Worse still, if the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice’s law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.
Unfortunately over its history the Supreme Court has had its share of intellectually inadequate, wavering, incoherent, absurdly stubborn, or clerk-driven justices.

Via Instapundit. Read the whole thing.

Trying to Hit a 5-Run Homer

Mickey Kaus notes that it is the wrong approach for Democrats, should there be indictments in the Valerie Plame case, to try to use the case to re-argue the entire case for war in Iraq rather than just stick to the basic charge of jeopardizing the CIA:

Shouldn’t it be a general premise of Democratic politics that it’s reality-based and not spin-based? And while Dems might get a majority of Americans to agree that the Iraq War was a bad move, they’d get about 95% to agree that compromising covert American agents is a bad move. Why not make the latter the issue?


It’s not just that this would be a mistake, but that it’s the exact same mistake they’ve made before: most notably in 1987 when the Democrats discovered the Reagan Administration doing something politically explosive and contrary to its stated principles – trading arms to Iran for hostages – and frittered away all the political benefits of this revelation by instead staging a huge fight over the Nicaraguan side of the Iran-Contra scandal, which to most of the general public amounted to the allegation that Reagan’s people were going too far in fighting Communism in the Western Hemisphere. This was, of course, an issue on which the Dems had been whupped by Reagan in the past, and they were so eager to settle the score that they wound up getting a lot less mileage out of the scandal than they probably should have.
We may see a related mistake brewing in the Harriet Miers hearings – there have been rumblings that the hearings will turn into a rehash of the Ben Barnes/National Guard story, a mistake the Democrats just can’t stop making.

RELIGION: Scalia Strikes Again

In a post on Harriet Miers, Jonathan Last quotes the conclusion of an article by Justice Scalia in the journal First Things, featuring some vintage Scalia. An excerpt:

Could it be, however, that Smith is inviting, tempting, seducing his fellow academics to consider the theological way out of the quandary–the way that seemed to work for the classical school?
As one reaches the end of the book, after reading Vining’s just-short-of-theological imaginings followed by Smith’s acknowledgment of “richer realities and greater powers in the universe,” he (she?) is sorely tempted to leap up and cry out, “Say it, man! Say it! Say the G-word! G-G-G-G-God!” Surely even academics can accept, as a hypothetical author, a hypothetical God!

One For The White Sox

A few random thoughts on a good, solid Game One:
*Well, I guess the White Sox’ record of not facing a healthy #1 starter continues. Those are the breaks people forget three years later when they’re trying to remember how the heck that team won the World Series.
*It was a wierd sort of deja vu sitting with my 8-year-old son watching Clemens go out of a big game early – I remembered back when I was in college, seeing Clemens get ejected from the deciding game of the ALCS for arguing balls and strikes, or back to when I was 15, watching Clemens and Dwight Gooden both get shelled early in Game Two of the World Series. On a related note, I loved the graphic showing that the White Sox’ GM, manager and coaches had more career at bats vs. Clemens than their players.
*They don’t give points for style – it counted just like Albert Pujols’ moonshot – but it’s pretty hard to hit a less impressive home run than Mike Lamb’s shot to tie the game at 1-1 – not only did it clear the fence by just a foot or so, it was caught pretty much on the fly by a middle-aged woman in the first row.
*Dumbest quote of the night, from Joe Buck: “Even with the DH, the White Sox are showing they are not getting away from small ball in the World Series.” Yeah, funny how an American League team adjusts to playing with the DH.
*I really felt bad for poor Jeff Bagwell facing Bobby Jenks in the 8th inning – here Bagwell has had shoulder surgery and barely swung a bat against live pitching in months, and he’s facing a guy throwing 100 mph heat. Two or three years ago he would have put a heater like that in orbit, but now, after Jenks’ first pitch, Bagwell had a distinct look on his face that said “I’d really rather be watching that pitch from a recliner in my living room.”
UPDATE: Laurence Simon is checking the warranty.

Continuing Conflict of Interest?

A reader asks Professor Bainbridge whether Harriet Miers should resign as White House counsel because of the risk that further actions as White House counsel could lead to further recusal issues down the road on the Court. As a practical matter, I doubt she’s doing much counseling at the moment, so this is somewhat theoretical, but it would probably be prudent to take a formal leave of absence (sitting judges, of course, don’t step down for a more practical reason: they don’t want to give up their current life-tenured jobs).

Will on Miers

Nothing terribly new here, but a few interesting points from George Will, who from the start has been one of the implacable foes of the Miers nomination:

Can Miers’s confirmation be blocked? It is easy to get a senatorial majority to take a stand in defense of this or that concrete interest, but it is surpassingly difficult to get a majority anywhere to rise in defense of mere excellence.
Still, Miers must begin with 22 Democratic votes against her. Surely no Democrat can retain a shred of self-respect if, having voted against John Roberts, he or she then declares Miers fit for the court. All Democrats who so declare will forfeit a right and an issue — their right to criticize the administration’s cronyism.
And Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.
As for Republicans, any who vote for Miers will thereafter be ineligible to argue that it is important to elect Republicans because they are conscientious conservers of the judicial branch’s invaluable dignity.

My World Series Pick: White Sox in 7

I find this one a tough one to call. Rational analysis gets you only so far in the postseason; I often find it more effective to look backward at which storyline seems more likely to unfold. On the one hand, the Astros have better front-line talent; they have two big-time bats (Berkman & Ensberg) to the Sox’ one (Konerko), they can go 1-2-3 with an inner-circle Hall of Famer who had his best career ERA, followed by a guy who has four World Series rings and posted his career-best ERA, followed by the only picther in baseball to win 20 games each of the past two years. They have the fire-breathing closer (granted that Lidge doesn’t seem as scary after the Pujols Bomb). The White Sox, by contrast, have depth – four real good starters vs. three great ones, four tough relievers vs. the Astros’ three, a leadoff man who gets on base (Houston has nothing of the sort at this juncture), and an overall deeper lineup. All in all, they’re pretty well-matched teams.
It’s worth noting that the Sox got this far by beating two teams that were without their ace starter, whereas the Astros have three of them. In fact, let’s rank the starters the White Sox have faced or will face in the playoffs by ERA+ (for those of you who are unfamiliar, ERA+, the baseball-reference.com stat, adjusts ERA for league and park – the higher the better):
1. Clemens 221
2. Pettitte 174
3. Oswalt 141
4. Washburn 131
5. Lackey 122
6. Byrd 112 (twice)
7. Wakefield 106
8. Wells 99
9. Clement 96
10. Santana 90
11. Backe 87
So, you have to figure they will have a lot more trouble with the Astros, other than Backe. And the small-ball approach will have trouble against Clemens (because of the strikeouts) and Pettitte (who can strangle the running game with baseball’s best pickoff move).
In general, the front-line stars usually outshine the deeper teams.
For all of that, I have the feeling that this is, at long last, Chicago’s year. The team is deep and well-balanced, and the storyline of Ozzieball seems destined to be written. This will be a tight, tough series (although expect one or two high-scoring games, just because baseball is like that). White Sox in Seven.

It’s The Opinions, Stupid (Or: Why I’m Off The Fence And Opposing Miers)

After weeks of trying to keep an open mind about the Harriet Miers nomination, I’ve concluded that the Senate should vote down Miers – if her nomination isn’t withdrawn first – and force President Bush to nominate someone else. Let me explain why.
Now, as you will recall, I was initially disappointed with this nomination, but then John Roberts wasn’t my first choice either. You need more than disappointment at the absence of better candidates to justify actively opposing the confirmation of the president’s chosen nominee. And there were some things I liked about Miers: I do believe that it would be a good thing to have a Justice who has practiced law at the trial-court level.
The Confirmation Standard
I started off with three big-picture questions about Miers, and five more specific concerns. The three big picture questions:
A. Do I believe Miers would be a good Justice in terms of things like legal skill, proper attention to relevant detail, and understanding of the need for clarity?
B. Do I believe Miers would be acceptable to me as a conservative, in terms both of following an acceptable method of deciding cases and generally acceptable results?
C. How certain do I need to be of #1 and #2 to support the nominee?
(B, of course, is shorthand here – if I accept the nominee’s philosophical/methodological approach, I’m willing to live with the possibility of some results that will make me unhappy. The more ad hoc or unpredictable the nominee’s approach, by contrast, the more worried I get about particular cases).
Question C is the tough one, if you think seriously about the question of what role the Senate – and those of us who comment on these things, who can (once the nomination is made) only look at this from the perspective of what the Senate should do – should play in the confirmation process. On the one hand, the Senate’s job is to decide if the nominee is acceptable and then vote on her – not argue over who might have made a better Justice. The president’s choice is entitled to some deference, as he gets to choose. On the other hand, appointments to the Supreme Court are enormously important, mistakes are impossible to fix once confirmed and can have consequences reaching decades or centuries into the future, and there is one specific area – the president’s choice of close personal friends – that warrants less deference, as it was a particular item of concern to the Founding Fathers. In light of that concern, I believe more scrutiny is required of Miers’ qualifications than would be the case if she were not a close personal friend of the president.
As to ideology, my feeling all along has been that presidents are entitled – indeed, obligated, if you take seriously the idea that legitimacy flows from the people’s approval of the principled positions taken during an election campaign – to nominate Supreme Court Justices who are consistent with the publicly declared philosophy of the president, and the Senate is justified in rejecting nominees on ideological grounds only if the nominee is far out of whack with what the people were entitled to expect from the president they elected. To give an example, Bill Clinton ran as essentially a social liberal – as far as the issues that are decided by courts are concerned – but with one significant exception, that being that Clinton supported the death penalty. There were a number of Supreme Court Justices in the late 80s/early 90s – I believe Brennan, Blackmun and Marshall all did this – who made a practice of voting to overturn all death sentences, to the point of dissenting from the Court’s orders denying certiorari in each and every death penalty case not taken by the Court. Clinton was entitled to appoint liberal Justices, as he did, and as were confirmed by the Senate with significant Republican support. But I do think the Senate would have been justified in rejecting a Clinton nominee who was, in the Brennan mold, a doctrinaire, no-exceptions opponent of the death penalty, because that would have been out of step with the philosophy the president campaigned on.
In Bush’s case, he unquestionably campaigned and has promoted himself in office as a social conservative – pro-life, anti-same-sex-marriage, in favor of an expanded role for religion in public life. He has also campaigned and governed, at least in terms of stated philosophy, as an economic conservative. There is no justification for rejecting a Bush nominee on grounds that the nominee appears to be pro-life or pro-business. And Bush touted his belief that he admired Justices Scalia and Thomas; thus the Senate should have no grounds for rejecting a nominee in that mold. On the other hand, a nominee who was a genuinely radical small-government conservative or libertarian – i.e., someone who wanted to bring back the rule of Lochner under which the courts make substantive judgments about economic regulations – might legitimately be rejected as out of the mainstream of the Republican party and the president who leads it. This is why I think that, of the frequently discussed potential nominees, Janice Rogers Brown is the only one who might legitimately be voted down on ideological grounds (although I understand the argument that the charges against her are overstated; I’m speaking hypothetically here).
The flip side of that is that the president’s own supporters do have an obligation, I believe, to reject a nominee who is dramatically inconsistent, in terms of judicial philosophy, with the president’s own stated philosophy. And that has been a big concern with Harriet Miers.
The Trouble With Harriet
Turning to specific questions about Miers, I’ve raised a number of concerns about her – click here and scroll down. These boil down to five more specific questions:
1. Does her lack of grounding in constitutional law and theory, taken together with what we know of her temperament, indicate that she will drift from her moorings once on the Court?
I’m inclined to give Bush some benefit of the doubt on the temperament issue, as he knows her well, but the lack of experience with constitutional law worries me, and worries me all the moreso as she seems to be fumbling her way through meetings with senators and botching her questionnaire by giving, at best, opaque answers about constitutional subjects. As I’ve explained here, and as Justices Scalia and Rehnquist explained here, while we certainly do not need nine constitutional law professors on the Court, it is simply not acceptable to have a Justice who is a completely blank slate as far as her experience with the constitution. In fact, this goes to Question C above: with John Roberts, even though we had to take on faith to some extent his philosophy of judging and of the constitution, there was no doubt from his resume and experiences that he had had more than ample time and opportunity to think deeply about those issues, and thus the likelihood is much less that he would find himself adrift (or overwhelmed, like Lewis Powell) once on the Court.
And yes, this ties into the question of ideology. A Justice who is a known quantity, to herself and to the world, is far more likely to be predictable in how she approaches the law, and conservatives have labored too long and too hard to reclaim the judiciary on behalf of pro-democracy judges to entrust the job to a complete cipher.
2. Does she understand the body of constitutional law well enough to anticipate how the drafting of her opinions will affect cases not before the Court?
I’ve covered this point before. To use a football analogy, I want a Justice who can see the whole field, not a hedgehog who burrows into one narrow issue and loses track of how it fits into or affects the next case. I’m deeply skeptical that Miers has the breadth of understanding to do this.
An example of what I’m talking about is a specific case I’ve blogged about before here, and which is on this term’s docket: FAIR v. Rumsfeld, the Solomon Amendment case. The case will determine whether the lower court properly issued a preliminarily injunction against the enforcement of the policy of denying federal funds to universities that do not allow military recruiters equal access to that provided to civilian employers. Just in this one case, we have issues of the proper standard applied to compelled speech, freedom of association (the Third Circuit claimed that its decision in favor of the law schools was compelled by the decision holding that the Boy Scouts couldn’t be forced to hire gay scoutmasters) and the role of academic freedom, which the Court has treated very inconsistently (recall the distinction between the VMI case and the Michigan affirmative action cases); to what extent the War on Terror makes military recruiting a compelling public interest; to what extent the Court should defer to legislative judgments about the needs of military recruiters; and whether Congress can do indirectly through the Spending clause what it might not be able to do directly, as well as whether the particular program is rationally related to the spending at issue. (This is aside from the procedural issues like standing and the standard applied to an appeal from an order denying a preliminary injunction). And that’s just one case. We need Justices who can not only resolve a case like this but do so in a way that makes more rather than less sense of the existing constitutional framework of these various doctrines. And this leads us to my third question, the one that is the deal-breaker.
3. Does she have the intellect and writing chops to understand the torrent of complex issues the Court needs to resolve and produce clear opinions that lay down workable rules of law?
Here’s what I, as a practicing lawyer, want, as far as qualification and competence: a brilliant or, at least, a clear and incisive legal mind, someone who can grasp the many, varied and often complex issues – constitutional and statutory – that come before the Court. I want someone who can write opinions that are internally coherent, make sense, and reduce rather than multiply litigation over their application. I want a Justice who can consider and reject the best arguments against the Court’s ultimate disposition, rather than dodge, sweep aside or leave unsettled alternative arguments for the opposite outcome. I want someone who understands that, because the Court takes but a small fraction of the cases raising a particular legal principle and sometimes takes years to revisit an issue, the Court’s job is to settle unsettled questions of law.
Now, when we are discussing Miers’ qualifications, it is sometimes objected that critics of Miers are being elitist. But let us make one thing perfectly clear: I’m not looking principally for credentials, I’m looking for skills and a base of substantive knowledge. The credentials are just markers that help us determine how sure we are that the nominee has the skills needed to do the job. As I’ve discussed before, no one of Miers’ credentials, or omissions from her credentials, is the problem; the problem is that taken as a whole, her experiences provide no guarantee that she possesses the necessary intellect and the ability to write with clarity and decisiveness sufficient to give meaningful guidance to litigants and lower courts.
One of the chief lines of argument made by Miers’ defenders goes like this, from Thomas Sowell:

The bottom line with any Supreme Court justice is how they vote on the issues before the High Court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the President is right about Harriet Miers, she may be the best choice he could make under the circumstances.

Via Nordlinger. Hugh Hewitt sounds the same theme:

Miers is headed for SCOTUS, guaranteeing decades of anguished posts by members of the Bos-Wash Axis of Elitism on why her votes don’t count as much as their long ago criticisms.

I understand full well the desire to get the votes we want on our side. But the Supreme Court is about more than just votes. This is not the House of Representatives, where you just shut up and vote; it’s about the Court’s written opinions. Of course, writing style and ability matters. Because words are the Justices’ only weapons.
The Supreme Court decides, if I recall correctly, something like 90 cases a year. Most of those cases, standing alone, don’t matter much to the rest of us – who cares if Norma McCorvey couldn’t get an abortion, or Jennifer Gratz couldn’t get into Michigan Law School? With the exception of the occasional Bush v. Gore, Watergate or Pentagon Papers case, the Court’s decisions matter because of the way its opinions govern the thousands of similar cases that don’t come before the Court. And the way in which the opinions are written matters very much to how broadly or narrowly the Court’s decisions are written, or whether those decisions are persuasive to future Justices. So yes, Miers’ writing style is in fact an essential job requirement.
Now, like the questions about Miers’ knowledge of constitutional law and her judicial philosophy, my initial inclination was to wait and see. We knew that Miers had been a successful commercial litigator, and many (though not all) successful commercial litigators are indeed brilliant and persuasive writers. So, I’ve been waiting on the evidence.
I’ve finally reached the point where I can wait no more. First, we saw that Miers had a fairly thin record (see here and here) of actually litigating, on appeal or to other published dispositions, cases raising the kind of issues that I and other lawyers grapple with on a much more regular basis. I don’t care that she hasn’t tried a ton of cases, a point Beldar has aptly rebutted, but the notion that Miers has been out there litigating cutting-edge legal issues as her bread-and-butter for years and years seems inconsistent with her record.
And there was also the issue of the near-complete absence of observers who could testify with any kind of superlatives to Miers’ intellect and writing. Just look at Beldar’s glowing assessment of two of his mentors in practice. I can certainly think of lawyers I’ve worked with and observed that I’d describe in similar terms. And there was no shortage of people willing to step up and not only say, but say with extensive supporting specific examples, that John Roberts was a man of great intellect and talent, a clear and persuasive advocate. By contrast, Miers’ defenders (see also here) always seem to describe her as “competent” or “well-prepared” or “ethical” – all wonderful qualities in a lawyer, but they keep leaving me wondering, is this the best anyone can say? And aren’t there hundreds, maybe thousands of practicing lawyers about whom you could much more easily find judges, colleagues and even opposing counsel to speak in far more glowing terms? (Where are Miers’ old partners in this? We’ve hardly heard a peep from anyone who knows her work really well other than Nathan Hecht).
Then, we started to get a glimpse of Miers’ actual writings, discussed here. And that was the last straw. Maybe it’s just that I have very high standards, but as I’ve said before, I’ve encountered successful lawyers before who just weren’t clear and persuasive writers, or who were sloppy thinkers and interpreters of the law. And so far, everything we’ve seen of Miers’ writings suggests that the woman simply is not the kind of writer I would consider a good summer associate at my law firm, let alone a Supreme Court Justice. And that can’t stand. The Court is too important to the system of justice to let someone in the door who lacks the minimal competence to do the core part of the job: explaining the law.
In short, I can no longer maintain anything but the most hypothetical hope that she would blossom into, say, another Clarence Thomas on the bench. The evidence is now clear that Harriet Miers would be, at best, a good follower on the Court, a person who brings some practical perspectives to some of the issues before the Court, but exacts a price in the quality of the opinions she would write and – as happens with these things, when opinions must meet the approval of all the Justices who join them – perhaps in the quality of opinions she would agree to join as well.
(And for those of you who compare her to Bush: don’t. Verbal intelligence and the ability to write persuasively are not essential job requirements of the presidency. They are essential job requirements for the Court. The president can order soldiers into battle, and they will go. When the Court says “jump!” nobody jumps unless it is clear what they are being told to do and how high to go. Written opinions are the only soldiers the Court has at its disposal.)
4. Is Miers too close to Bush to rule against his Administration when – as all governments are wont to do, even good ones – it exceeds its legitimate authority under the Constitution?
5. Will Miers have to recuse herself in too many cases?
I’ll skip over these questions because I came to my conclusion based mainly on the evidence of her qualifications for the job. But these are also legitimate issues with Miers, especially #4, and I will no doubt return to them as we go along.
You will note what I have not even discussed here: the politics of the nomination and the consequences of rejecting Miers. Yes, those are important. But Miers simply does not meet the minimal standards for confirmation to the Court. And as a practicing lawyer who will have to live with the consequences of this nominee if she is confirmed, I can’t support that, no matter what the judge’s party affiliation or her presumed ideology. President Bush should withdraw this nomination. And if he doesn’t, the Senate should vote NO.
PS – Another one off the fence against Miers.
UPDATE: To make sure NZ Bear picks this up: I oppose the Miers nomination.

Quick Links 10/20/05

*Judd Gregg wins $850,000 in the Powerball drawing
*Tom DeLay’s mug shot is a picture of defiance.
*Mac Thomason on the grim economics that will force the Braves to use even fewer good players to win the division next year.
*Ed Moltzen on Kathleen Willey and Valerie Plame.
*Minas Tirith and the fall of Constantinople. (Via the rejuvenated American Scene).
*Blez is ready to do without umps calling pitches and have machines call balls and strikes. Is the technology really workable to give reliable ball-strike calls for each hitter’s zone? If so, I could live with this.

Pythagoras and the Wild Card

For what it’s worth, the Pythagorean record of both the White Sox and Astros this season was 91-71.
While I was rooting for Houston, I must say my one disappointment from the NLCS was missing the chance to see two first place teams in the World Series for the first time in four years. In the past 9 seasons we’ve had 7 Wild Card teams in the Series, which just feels like too much, especially given that only one of those teams – the 2000 Mets – lost the series to a first-place team. Overall, Wild Card teams are 24-17 in postseason serieses dating back to 1995, and that just doesn’t seem right.

BUSINESS: Ignoring The Globe

Circulation plunges at the Boston Globe:

The Times Co. said yesterday its Boston paper’s weekday circulation plunged by nearly 8 percent over the past six months compared to last year – dropping 35,000 copies to 416,000, despite heavy marketing and steep price discounts offered by the newspaper.

Via RedHot. To be fair, this time last year, the hometown Red Sox were marching to the World Championship and hometown Senator John Kerry was in the heat of the presidential election. On the latter story, at least, for all its biases, the Globe did break national news a number of times. It’s hard to replicate those conditions every year.

The Writing Sample

Beldar offers up, as a sample of Harriet Miers’ persuasive writing, a letter she wrote to George W. Bush (when he was governor of Texas) urging him to veto legislation that would prevent the newly Republican-controlled courts from regulating attorneys’ fees, specifically those charged by the plaintiffs’ bar in contingency-fee cases. I agree wholeheartedly with Patterico that this is another unencouraging sign (to say the least) about Miers’ writing abilities. Check out the last two full paragraphs:

The passage of this proposed law squarely raises the issue of the special interest laws [sic] for the benefit of those who have the wealth and power to cause to be passed self-protective legislation. What possible justification can exist for this law? There may be attempts to explain or provide justification. Those of us who are knowledgeable about the legal community know that this law is a special interest bill to protect from legitimate scrutiny and regulation individuals in our state perceived to wield power and influence.
I respectfully suggest that this law should be vetoed. It is bad, indefensible policy. Additionally, I feel confident it will never work and those involved in its promulgation will be smeared with legitimate criticism for a blatant attempt to shield, protect and curry favor with interests that have brought shame on this state, badly hurt our economic development efforts directed at creating jobs and continue to this day to cause our state to be held in disrepute for “justice for sale.”

Where to begin? Leave aside the grammatical disaster that is the phrase, “[t]he passage of this proposed law squarely raises the issue of the special interest laws . . . ” We have the mealy-mouthed phrase “those who have the wealth and power to cause to be passed self-protective legislation,” rather than coming right out and saying, in a declarative sentence, “the contingency fee bar” or some such clear descriptive phrase. Then, having gone not nearly far enough, Miers backtracks: those who, two short sentences earlier, could be confidently asserted to “have the wealth and power to cause to be passed self-protective legislation” are suddenly only “perceived to wield power and influence.” And while the bill will, for reasons unstated, “never work” (at what? Miers does describe some specific bad effects earlier in the letter, but never addresses the bill’s actual stated purpose, and seems to assume that it actually will work at the purpose of benefitting people with actual or perceived power or influence), it nonetheless will, at some future date, “continue to this day” (in the future? or are we in Doc Brown’s DeLorean now? actually, it’s the “interests” that “continue to this day” to do bad things, but that connection is lost in Miers’ tortured syntax) to cause the bill’s proponents to be “smeared with legitimate criticism” (!!).
David Brooks’ grim assessment of Miers’ writings as the head of the Texas Bar were bad enough, but one can understand that a bar association president’s job is to say nothing, and most rational people wouldn’t put much effort into writing those letters. But this was an attempt to persuade the governor of the state to veto a bill, and yet we get instead this train wreck of euphemisms, tortured grammar, and laughable solecisms. I do not look forward to spending the rest of my professional career reading opinions like this, and this sort of thing pushes me one step closer to throwing my lot in 100% with the anti-Miers forces.
UPDATE: Patterico also directs us to this critique along the same lines.
SECOND UPDATE: Another example, from Patterico, of muddled thinking and/or bad writing from Miers.

The Legend of Dagger Chuck

The New York Sun mocks Chuck Schumer for overuse of a metaphor:

No sooner had [former] Senators [Connie] Mack and [John] Breaux unleashed their ideas on making the federal tax code more simple and fair than Senator Schumer unsheathed his rusty old dagger, describing the idea of eliminating the federal deduction for state and local taxes as “a dagger to the heart of the people of New York.” Voters might be inclined to listen — except for the fact that Mr. Schumer sees a dagger virtually everywhere he looks.
A 2003 plan for flexible work schedules instead of overtime? “A dagger to the heart of the middle class,” Mr. Schumer said, according to the Associated Press. A 2002 plan by federal regulators to urge Wall Street firms to establish backup facilities outside New York City? A “dagger pointed at the heart of New York,” Mr. Schumer said, according to the Daily News. High gas prices? “A dagger at the heart of our economy,” Mr. Schumer said in 2000, according to the New York Times. A unilateral declaration of Palestinian statehood would be “a dagger through the heart of the peace process,” Mr. Schumer said in 2000, according to the Agence France Presse.
Hate crimes “put a dagger in the heart of what America is all about,” Mr. Schumer said in 1999, according to USA Today. A proposal to change the federal transportation funding formula was “a dagger pointed at” New York and California, Mr. Schumer said in 1999, according to the Washington Post. School vouchers? “Daggers that plunge into the heart of what is the American way,” Mr. Schumer said in May 1999, according to the New York Post. Cuts in federal student aid? “A dagger to New York’s college students,” Mr. Schumer told Newsday in 1995.
Not to put too fine a point on it, but Mr. Schumer sees daggers more often than a four-eyed knife thrower looking through a kaleidoscope.

(Emphasis added). Via Taranto.

Quick Links 10/19/05 (Supreme Court Edition)

*The now ironically named ConfirmThem makes a point I had thought about with regard to Paul Mirengoff’s post on how the Democrats could filibuster Harriet Miers if, in an effort to rebuild her support on the Right, she makes clear that she would vote to overturn Roe v. Wade:

The prospect of this nomination triggering a debate on the nuclear option is perhaps the worst possible scenario for the White House. There could have been no other reason to select Harriet Miers other than to guarantee easy passage of a relatively unknown (stealth) candidate, thus avoiding a messy scene in the US Senate. But if a substantial number of Democrats decide, for whatever reason, to oppose this nomination, then not only would the administration have the fight it so desperately tried to avoid, it would have a fight without the support of much of its base.

Now, personally, as I’ve argued before, I don’t have a problem with filibusters of judicial or executive nominees per se; my objection is to open-ended, indefinite filibusters designed to prevent a vote once it’s clear that the nominee has the votes to be confirmed. But if the GOP allows such a filibuster of Miers, the Democrats will have a precedent they can point to in the future. Thus, it will be imperative for Republicans to overcome any filibuster of Miers, for the sake of future nominees and – yes – even for the sake of the power of future presidents, Republican and Democrat alike. But by staging such a battle in favor of a weak and unpopular nominee is the worst possible political ground to fight on.
*Patterico notes the related problem that Bush would be in a weaker position to name a known conservative to replace Miers than he would have been before the Miers nomination. On the other hand, if Miers’ nomination falls apart solely on the issue of her qualifications, that could provide a useful corrective for the post-Bork syndrome of picking nominees with short paper trails.
*Of course, that hasn’t stopped the rumor mill from running.
*So Harriet Miers has trouble keeping straight what she thinks about Griswold v. Connecticut, one of the most significant constitutional law decisions in memory. Not a good sign at all.
*As you’ve probably seen by now, National Review has officially weighed in against Miers. Also, John Fund on what exactly conservative leaders were told about Miers and Roe v. Wade.
*The business community likes Miers. (Via NRO). I can tell you two related reasons why business groups don’t necessarily want another Scalia or, especially, another Thomas. One, business has been thrilled with the Court’s imposition of constitutional limitations on state court punitive damage awards. Scalia and Thomas have both dissented from the Court’s precarious majority on that issue (personally, I find much more compelling the rule against punitive damage awards based on out-of-state business operations, for reasons discussed here). Two, Thomas is also a regular dissenter from decisions on the Dormant Commerce Clause, which is often used to strike down local protectionist legislation and other hindrances on nationwide business operations. On this latter front, I think Thomas is fighting a pointless and lonely struggle against a doctrine announced in 1824 by John Marshall, but he does have his reasons. Many business leaders don’t want a Justice who will revisit the constitutional foundations of some of these decisions.
*Thinking out loud here on another issue that may come up, but I’m not sure it has any weight to it. Presumably, a Justice who was married to a lower court judge would have to recuse herself from cases in which he had issued a ruling, no? Doesn’t that suggest – and believe me, I’d really rather not go there – that whether Miers would have to recuse herself from cases on which Justice Nathan Hecht of the Texas Supreme Court had ruled would depend on the nature of their relationship, which seems to be at least semi-romantic but which was, until now, very properly nobody else’s business? (This is of a particular concern because the number of death penalty cases coming to SCOTUS from the Texas Supreme Court is non-trivial.)
*Beldar explains why Miers’ 1995 effort to block legislation over lawyer fee awards, on separation of powers grounds, was reasonable; the short answer is that lawyer fee awards, unlike many other subjects of judicial lawmaking, really are naturally subject to the plenary regulation of the judiciary by virtue of the judiciary’s inherent authority to regulate the ethical practice of the bar. That doesn’t mean a legislature should never intervene in those issues, but it’s not judicial activism to view the discipline of lawyers as the juduciary’s job in the first instance.
*Here’s something that drives me nuts. First, from the Washington Post:

Grover Norquist, head of Americans for Tax Reform and host of the other meeting, declined to comment on the discussion because of its presumption of confidentiality but said there is widespread concern given the experience with the nomination of Justice David H. Souter, who proved more liberal once on the bench.

Then, from an article about a new biography of Souter:

When he joined the court 15 years ago, Souter was touted as a sure bet for conservatives.
Since then, however, he’s been vilified as a traitor and closet liberal, more likely to align himself with swing voters like Sandra Day O’Connor than conservatives like Antonin Scalia.

(Via Stuart Buck). Would it kill these people to just come out and say that Souter has actually voted as a liberal? That he votes very consistently with the Court’s liberal bloc? Of O’Connor and Kennedy, you could say that they proved “more liberal” (or “less conservative”) or were/are “swing” voters. Souter, like Blackmun, is the genuine article, a guy who has sided with the Court’s liberals on nearly every major decision that offered a left/right split. Are Scalia and Thomas conservative? Yes they are, and news accounts properly describe them as such. But actually saying “David Souter is a liberal” is apparently a bridge too far.
*Christopher Hitchens quotes Thomas Jefferson:

Fix reason firmly in her seat, and call to her tribunal every fact, every opinion. Question with boldness even the existence of a God; because, if there be one, he must more approve of the homage of reason, than that of blindfolded fear. You will naturally examine, first, the religion of your own country. Read the Bible, then, as you would Livy or Tacitus. . . Those facts in the Bible which contradict the laws of nature, must be examined with more care, and under a variety of faces. . . I forgot to observe, when speaking of the New Testament, that you should read all the histories of Christ, as well as of those whom a council of ecclesiastics have decided for us, to be Pseudo-Evangelists, as those they named Evangelists.

This is another pet peeve of mine. Hitchens quotes this passage as if it were self-evident that reason and skepticism must lead to atheism or agnosticism, and as if mature adults must retain a permanent posture of skeptical uncertainty towards the existence of God. There’s nothing wrong with, and much to be said for, taking a hard look at some point at the things we take on faith. But at some point in life, you have to make decisions and commitments; you can’t hide forever behind an attitude of permanent uncertainty (as Neal Peart put it, “if you choose not to decide, you still have made a choice”). Hitchens is speaking of Harriet Miers, but who is to say that Miers has not given her faith a skeptical re-examination? After all, she left the Catholic Church to join a new denomination, a more radical break than most people experience. The fact that Miers made a decision about her faith does not necessarily mean that decision was unexamined.

Quick Links 10/19/05 (Non-Supreme Court Edition)

*Chris Lynch thinks it’s time to start thinking about Larry Walker as a serious Hall of Fame candidate. I’m not sure about that one, but Walker shouldn’t be penalized for his home park, as he really has been a fine hitter everywhere he’s been.
*Powerline has the text of a motion to dismiss the second indictment of Tom DeLay. It certainly sounds like DeLay has valid grounds to dismiss the indictment, on the basis of the statutes at issue not covering his conduct and, possibly, improper venue. (There’s no shame in being acquitted on technicalities when you are charged with a technical offense in the first place). But then, criminal defense attorneys often make arguments that sound persuasive until you see what the facts or law really are; I don’t know enough about the Texas statutes in question to know if this holds water.
*Comedian/actor Charles Rocket has committed suicide. Maybe it’s just me, but I could never keep Rocket straight from John Heard. I think it’s just that they shared a similar stable of facial ticks.
*Jeff Goldstein notes the massive allocation of resources to arrests for marijuana possession. I’m generally – if somewhat weakly – in favor of criminalization of marijuana (in part on a broken-windows theory), but the problem with enforcing the law against pot is that you end up with a choice between (1) using vast resources better spent elsewhere or (2) enforcing the law in an arbitrary manner (and as we all know, a law arbitrarily enforced is far more susceptible to being a law discriminatorily enforced). This is one reason why I think the federal government, at least, should get out of the pot-busting business and leave to local governments the decision of what resources to allocate to this area.
*Leon H has a disturbing story about an affiliate of the American Girl doll company.
*Here’s a bizarre headline about North Korea: “Report: Kim has chosen 2nd son, an NBA fan, to succeed him.”
David Stern’s long arm grows ever longer.
*Mike Brown should be thankful that in the US, scapegoats only get fired.
*A word in favor of today’s soldiers. And a word about recruiting from someone who knows.
*I haven’t looked at the legislation in detail, but I agree with Instapundit that a Congressional effort to promulgate rules for the handling of detainees is a good thing, for reasons I’ve explained before.
*This, also via Instapundit, just amazed me. Next up, UK Committee on Un-Islamic Activities? We’re at war, and our allies are rotting from within.
*A stolen vote of the type you won’t hear much about.

Pujols-ed

Man, what a back-breaking ending to the Astros’ hopes of putting away their first pennant last night. That was, if possible, a tougher ending than the Notre Dame-USC game on Saturday, which is saying quite a lot. Roger Clemens, sitting in the Houston dugout, had a distinct “I’ve seen this movie before and I don’t like how it ends” look on his face. The home run itself was as impressive as its context, like George Brett’s homer off Goose Gossage in 1980; that’s what happens when a guy as strong as Pujols makes soldi contact off a guy who throws as hard as Brad Lidge.
Pujols is one of those guys you have to take in while he’s in his prime, because we’ll be telling stories about this one for years. As I noted after last season, baseball-reference.com not only says that the most similar player at the same age is Joe DiMaggio, but that the most similar player at the same age to Joe D is Pujols. That’s amazing. In fact, Pujols is a better hitter, if you adjust for the fact that the late-30s AL was even higher scoring than today . . . DiMaggio was still better because of his glove, though; in fact, a good modern analogy for DiMaggio is a guy who hits like Pujols and plays center field like Andruw Jones.
(By the way, I noticed that George and Barbara Bush stayed through the bitter end again last night at Minute Maid, like Giuliani at Yankee Stadium. One of the benefits of being a retired politician is you get to stay for the whole game.)

Leo, or Andruw?

Can you tell the difference between these two pitchers?

PITCHER IP HR/9 BB/9 K/9
A 128.2 0.98 4.20 5.04
B 134 0.81 4.30 5.71

I’d say Pitcher B is clearly the better pitcher, but only by a small margin – a few less homers, a few more Ks, but also a few more walks.
A: Jorge Sosa, 2003 (4.62 ERA)
B: Sosa, 2005 (2.55 ERA).
The difference? A drop in the opponents’ batting average on balls in play from .302 to .268. Looks like Sosa was more a beneficiary of Andruw Jones than Leo Mazzone.

Mario Encarnacion

Former A’s prospect and sometime Rockie Mario Encarnacion died recently in Taiwan, where he was playing professionally:

Professional baseball player Mario Encarnacion of the Dominican Republic was found dead yesterday morning in his dormitory. The cause of death is not yet known pending an autopsy, but investigators said his room had not been broken into and that a post-mortem examination found no signs of external injury.
Encarnacion played with the Chinese Professional Baseball League’s (CPBL) Macoto Cobras.
At a press conference held yesterday afternoon, CPBL secretary-general Lee Wen-ping said, “Encarnacion failed to pass a steroids exam in May and he was suspended from playing games for two weeks.”
Lee said Encarnacion explained to the league that he had taken weight-loss medicine which may have contained steroids. Encarnacion was worried that his weight was affecting his performance.
But Lee warned the media not to jump to conclusions.
“Before prosecutors finish an investigation, please do not suspect that his death was related to him taking medicines prohibited by the league,” Lee said.
Investigators said an autopsy would be conducted in a few days to determine the cause of death.
A Cobras coach, Lu Ming-shih, told reporters the team believed Encarnacion’s death might be related to gastroenteritis, which he had suffered from for a long time.

Stay tuned.

White Sox Triumphant

Well, anyone who predicted before the season that the Chicago White Sox would win the American League pennant, stand up and take a bow. My own Established Win Shares Levels system was very mildly optimistic before I adjusted for age, picking the Sox as the best of a bad lot in the AL Central, but the final age-adjusted numbers had them in second place at 78-84. More on that later. The Sox are, of course, yet another testimony to what you can accomplish in the postseason with good starting pitching.
One guy who has to be kicking himself now is Shingo Takatsu. Takatsu, himself a famously dominant postseason performer in Japan, was lights-out as the White Sox closer in 2004, and opened 2005 not only as the closer but as one of the team’s strengths. By the end of the season, he was in the Mets’ reclamation heap with Danny Graves, hanging on to any kind of a major league job.
As for last night’s game, I have to wonder whether the umps would have upheld the original call in favor of the Angels in that disputed play at first base if Kelvim Escobar had sold it better – the fact that Escobar made a throw after tagging Pierzynski killed any chance the Angels had of claiming with a straight face that he had made the tag.
UPDATE: By the way, I’m glad to see some chatter building about my theory that the White Sox are the real cursed franchise (first suggested in 2001).

Dandy Andy

I can’t think of any major league ballplayer who did more in 2005 to help his chances of possibly making the Hall of Fame someday than Andy Pettitte (and yes, if you’re clicking the link, baseball-reference.com now has the 2005 stats up). Entering 2004, Pettitte was a guy who’d racked up an impressive number of career wins (regular season and postseason) through age 31, but had never pitched away from the Yankees, had posted an unspectacular-looking 3.94 career ERA, and always seemed to be on the verge of an arm injury that would derail his career. In 2004, Pettitte played down to those expectations, losing half the season (including the Astros’ magical playoff run) to an injury.
So, this season’s comeback of 17 wins, a career-low 2.39 ERA, and 222.1 injury-free innings, and some solid postseason starts has done wonders for Pettitte’s credentials. With 172 wins through age 33, Pettitte has a plausible outside shot at 300 wins and a pretty good shot at 250; he has just 5 fewer victories than John Smoltz and 20 fewer than Curt Schilling, both of whom are 5 years older (granted, Pedro Martinez, who is the same age as Pettitte, has 27 more wins, but you don’t have to be Pedro to make the Hall of Fame). Better yet, Pettitte started, in 2001, transitioning to a top-notch control pitcher, but this was the first time since then that he was able to sustain that kind of control record (1.66 BB/9) over a full season without getting tagged for a very high number of hits (1997 was the only year of Pettitte’s Yankees career that he allowed less than a hit per inning). The ability to throw a lot of strikes without getting totally shelled is something that will serve Pettitte well in his 30s.
Predicting where Pettitte goes from here is another matter. Baseball-reference.com’s list of similar pitchers through age 33 is loaded with active and recent pitchers: Mike Mussina and Jimmy Key are the two guys over 900 in similarity scores, and Kevin Brown is on the list as well. There are two Hall of Famers on the list, at #9 and 10: Warren Spahn and Lefty Gomez, neither of whom really had a similar career, although both – like Pettitte – pitched in pitchers’ parks in high-scoring eras for powerhouse offensive teams most of their careers. Tommy Bridges, pitching hero of the 1935 World Series, is perhaps a better comparison, but pitcher career paths are notoriously hard to compare anywyay.

D’Oh!

As reported by Friday’s Wall Street Journal ($), the new Arab-language version of The Simpsons sounds more like a parody of Arab cultural hypersensitivity:

“Omar Shamshoon,” as he is called on the show, looks like the same Homer Simpson, but he has given up beer and bacon, which are both against Islam, and he no longer hangs out at “seedy bars with bums and lowlifes.” In Arabia, Homer’s beer is soda, and his hot dogs are barbequed Egyptian beef sausages. And the donut-shaped snacks he gobbles are the traditional Arab cookies called kahk.

A teetotaling Homer Simpson pretty much misses the point. The article doesn’t mention the fate of Ned Flanders and the show’s occasional scenes in a Christian church, which are presumably even more problematic than Moe’s.

Don’t Drink The Water

Responding to Hugh Hewitt’s taunts about “Evian Flu” among conservative pundits, Ramesh Ponnuru writes:

[M]y impression is that the proportion of our population that consumes either wine or brie, or both together, has gone up since [1997] . . . Hasn’t the insult lost its bite? I thought of this when I read a crack against elites that mentioned bottled water. It sure seems as though drinking bottled water has ceased to be an elite activity. Back in 1997, conservatives could mock latte towns–but you can find latte in any town you’re in nowadays. Conclusion: We need some new put-downs. (Confession: I like brie and wine, have occasionally had a latte, and buy bottled water for my family–but that last point reflects the high lead content in D.C. water rather than a preference on my part.)


At least as to the bottled water thing, Ramesh is right on. Most of us have an instinctive belief that paying good money for water in a bottle is ridiculous. And yet, if you live in a city like New York or Washington (or Worcester, Mass., where I went to college and where the tap water was brown), where drinking the tap water is not a sane option, bottled water has become a necessity – and all the moreso after September 11 and especially after Katrina, when bottled water has become an emblem of disaster preparedness.
(As for wine, I believe recent surveys have shown that Americans as a whole now drink more wine than beer.)

Welcome ESPN Readers!

As always, good to have visitors from Bill Simmons’ place stopping by. Unfortunately, I’ve been too busy with work to post anything substantive the last few days . . . For those of you who are dropping by for the first time, look around; there’s a lot of stuff here going back five years. This site covers politics, war, the law, pop culture and various other stuff; while I usually do more baseball during the playoffs, I’ve been writing a lot the last two weeks about the Supreme Court. You can hit the link at the top to just view the baseball posts.

Judges “Learned in the Law”

It’s appropriate at this time to recycle a quote from Justice Scalia that I ran here three years ago regarding judges and their prior public positions on issues, in a case regarding Minnesota’s regulations of speech by candidates for election to the bench:

A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.” Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “Proof that a Justice’s mind at the time he joined the Court was a complete tabula rasa in the area of constitutional adjudication would be evidence of lack of qualification, not lack of bias.” [Quoting same Rehnquist opinion] The Minnesota Constitution positively forbids the selection to courts of general jurisdiction of judges who are impartial in the sense of having no views on the law. Minn. Const., Art. VI, Sec. 5 (“Judges of the supreme court, the court of appeals and the district court shall be learned in the law”). [A]voiding judicial preconceptions on legal issues is neither possible nor desirable . . .

(Emphasis added; citations omitted).

A Hypothetical Conversation With A Moneyball-Bashing Sportswriter

In the style of Jeff Goldstein:
Grumpy Old Sportswriter: That Billy Beane sure thinks he’s smart, writing that Moneyball book.
Me: Um . . .
Grumpy Old Sportswriter: Not that I’ve read the book. That would be wrong.
Me: Of course.
Grumpy Old Sportswriter: But him and his number-crunching friends don’t understand baseball. You know how you can tell that? Because his teams don’t win in the playoffs. The playoffs are the real thing. That’s what separates the men from the boys.
Me: So, who’s the best GM?
Grumpy Old Sportswriter: John Schuerholz. The Braves are the anti-Moneyball team. That’s how you run a major league organization. Old school, my friend.
Me: So, how have the Braves done in October?
Grumpy Old Sportswriter:
Me:
Grumpy Old Sportswriter:
Me:

Grumpy Old Sportswriter: RALLY MONKEY!!!!

Not A Good Sign

From OpinionJournal’s Political Diary, John Fund reports:

The portrait of Harriet Miers emerging from interviews with her friends and colleagues in Texas is largely a consistent one. She is universally regarded as bright, hard-working and remarkably gracious. But she also clearly has a steep learning curve when it comes to serving on the Supreme Court.
Bruce Packard worked with Ms. Miers as a partner at the Dallas firm of Locke Liddell & Sapp for a dozen years from 1985 to 1997. He calls Ms. Miers is a “very good moral person,” but says her real skills at the firm were networking and climbing the rungs of the local and state bar association hierarchy. She rarely tried cases and most of her work for corporations was to serve as the local counsel for out-of-state companies that needed someone familiar with local Dallas judges.

(Emphasis added). Hopefully, we’ll get a fuller picture of what Miers’ record in private practice really was. If I can be convinced that Miers was a genuinely outstanding commercial litigator, skilled in evaluating and presenting legal arguments and learned in the law governing her areas of practice, I can at least consider supporting her for the Court. That case remains unmade.
UPDATE: In Wednesday’s Political Diary, Fund says again that “Ms. Miers has real-world experience serving as local counsel for such corporate clients as Microsoft and the Walt Disney Company.” For those of you unfamiliar with the concept, if, say, a New York law firm wants to represent Microsoft in a Texas court, and the lawyers representing the company aren’t admitted to the Texas bar, Microsoft still needs to hire lawyers who are members of the Texas bar – “local counsel” – to appear with them in court, even if the Texas lawyers do little besides greet the judge, sign papers drafted in New York, and receive service of court papers (this is not limited to Texas – nearly all states have such requirements, and in fact, one subject Miers has written on extensively and substantively is multi-jurisdictional law practice). On the other hand, (1) some non-lawyers might use the term to refer to Microsoft’s regular lawyers in Texas, and (2) local counsel sometimes has a much more active role, including handling arguments and trying the case with just some background assistance from out of town lawyers.
To me, the question of what Miers’ role was in cases where she appeared on the pleadings on behalf of Microsoft and Disney is hugely important. Beldar’s review of published opinions in cases where Miers was named as counsel places very heavy emphasis on her representation of Microsoft and Disney to show that she had a top-flight commercial practice involving her in complex questions of law. I have asked whether those cases were typical of her practice. But if it turns out that even on those cases she was largely just signing papers drafted by out-of-state lawyers, that would severely undercut Beldar’s case for Miers having a distinguished record litigating complex and sophisticated legal issues.
SECOND UPDATE: Finally, some details on Miers’ cases – this account indicates that she was, in fact, lead counsel for Microsoft (via Bashman):

Most of the cases the Supreme Court nominee handled were settled before they went to trial, her former law partners say. Those colleagues and lawyers who opposed her remember Miers for her preparation and attention to detail.

[snip]

Her biggest case may have been her successful fight to spare Microsoft from class-action lawsuits over an alleged defect in one of its computer operating systems.
Plaintiff lawyers persuaded a state district court judge in 1995 and an appeals court to certify lawsuits against the company as a class-action matter. Up to 11 million consumers around the country could have joined in one massive lawsuit against the software giant, according to lawyer Jerry Clements, who worked under Miers on the case.
Miers went back to the original judge and argued that recent court decisions meant that complaints against Microsoft didn’t merit class-action status. The judge reversed herself. Anyone claiming damage would have to sue Microsoft on his own – a costly undertaking. Later, the case was dismissed.
“That was the beginning of a pretty significant trend in Texas that moved away from the state being a good place for class actions,” Clements said.
Miers lost cases, too. In 1988, she defended a firm led by a prominent Hong Kong investor who had backed out of a deal to invest $5 million to buy a Dallas office building. One of the other investors, Bear Stearns Cos., tried to cash the Hong Kong firm’s letter of credit.
A federal judge sided with Bear Stearns, but Miers persuaded the 5th U.S. Circuit Court of Appeals to give her client another chance at a trial, according to Lewis LeClair, one of Bear Stearns’ lawyers.
“I really thought I had the case won until she showed up, and then I found myself playing defense for a long time,” LeClair said. Although Bear Stearns won in the end, “she did an excellent job with a very difficult case,” he said.

[snip]

Joe B. Harrison, an attorney who opposed her in a 1998 case, remembers Miers as “well-prepared and competent and ethical and responsible.”

[snip]

During the 2000 presidential campaign, Miers defended Bush and running mate Dick Cheney against a lawsuit claiming that Texas representatives to the Electoral College couldn’t vote for the Republican ticket.
The Constitution forbids electors from voting for a president and a vice president if all are from the same state. Cheney had lived in Dallas for five years and returned to Wyoming only after joining the ticket. Miers argued that the Texas residents who brought the lawsuit didn’t have standing to sue.
The appeals judges hearing the case later decided that Cheney was indeed a Wyoming resident. The opposing lawyer, Charles W. McGarry, said Miers focused on a narrow procedural issue but did a competent job.
“She was the go-to lawyer for Republicans,” McGarry said.

A lot of mild praise there – “competent,” “well-prepared.” I don’t think we’ll hear the kind of adjectives we heard from observers of John Roberts as an advocate, but we shall see. Overall, a small data point in Miers’ favor.