Covering the Front and Back Pages of the Newspaper
January 11, 2006
LAW: Advantage: Crank
[I]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.
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?
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.
SMART IS IN: Old conventional wisdom: a super-smart conservative judge with a track record cannot be confirmed. Find a competent but non-stellar judge with conservative inclinations and no paper trail and sneak him through. New conventional wisdom: a super-smart conservative judge is easier to confirm. He'll outsmart his senatorial critics, paper-trail or no. The Harriet Miers nomination was a product of the old conventional wisdom. The new conventional wisdom means that, for some time to come, Republican presidents are going to be choosing nominees who delight conservatives.
[W]hat'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.
With the Alito hearings in full swing, Senator Santorum is pressuring challenger Bob Casey Jr. to state whether he supports or opposes confirmation of Samuel Alito to the Supreme Court. Until Casey expresses his view, Santorum's campaign plans to call him "Silent Bob."