an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Or so it would seem. Whatever happened to the President's mighty Article II power to have his chosen candidates confirmed by the Senate?
The reason for the apparent flip-flop on this suddenly inappropriately named blog is that all those arguments about the unconstitutionality of the filibuster, the advantages of the nuclear option and, above all, the Senate's duty to confirm whoever the President chooses were premised on the President selecting candidates they approved of.
The fine folks over at Confirm Them have come to realize more urgently what they believed all along-- that qualifications are perhaps the most important feature in a judicial nominee.
Good for them. They care about what Sandy Levinson and I call the "high politics" of constitutional law. I may not agree with their views about the best interpretation of the Constitution, but I salute the fact that they are serious about the Constitution and about making sure that good people are put on the federal bench. The President, on the other hand, does not seem to share this seriousness about the Constitution. He just wants people on the bench who won't get in his way and will reach results he likes, however they get to that particular conclusion. Harriet Miers may turn out to be just dandy as a Justice; she may in fact be far more than the portrait we have from the press: a syncophant and crony put on the Court to give the President whatever he wants. But the early indications are not at all promising.
As a blogger at confirmthem, I'd be most appreciative if you'd point out where we ever suggested that the President has a "mighty Article II power to have his chosen candidates confirmed by the Senate." Where has our blog ever remotely argued for "the Senate's duty to confirm whoever the President chooses"? Could it perhaps be that you are reading things into our blog that simply are not there?
You also suggest that we want to filibuster the Miers nomination. Where did you get that idea? I'm not aware that any of us have suggested such a thing.
Speaking of filibusters, I also don't recall having argued that perpetual filibusters of judicial nominees are unconstitutional. I argued that they are unprecedented, that they violate the expectations of the framers, that they violate US Senate Rule 31, that they are bad policy, that they should be destroyed by the so-called nuclear option, and that they should alternatively be destroyed by forcing a tie vote that can be decided by the Vice President. But I don't recall having argued that perpetual filibusters of judicial nominations are unconstitutional.
By the way, our blog isn't monolothic. Some of us confirmthem bloggers oppose her confirmation, while others (like me) are on the fence until she has a chance to testify. So let's all chill and see how she does.
"The reason for the apparent flip-flop on this suddenly inappropriately named blog is that all those arguments about the unconstitutionality of the filibuster, the advantages of the nuclear option and, above all, the Senate's duty to confirm whoever the President chooses were premised on the President selecting candidates they approved of."
I don't think that's accurate. I think the views of confirm them were premised on the President selecting qualified candidates, which is not quite the same thing as you said. There has never been a blank cheque support; Bush could not name his daughter to the Supreme Court, or his CPA to succeed Greenspan.
A careful reading of the posts of many of the major contributors at confirmthem reveals that to them, the principal qualification that Ms. Miers lacks is a "sonsitent judicial philosophy," which when defined most often equates to Borkian originalism or every now and then textualism.
Their principal emotional motivation seems to be betrayal, repeatedly stating that Bush promised to appoint Judges "like Scalia and Thomas. I only recall that when asked which Justices he admired, Bush named Scalia and Thomas. At any rate, his most frequent statement was that, if you wanted to know what kind of judges he would appoint if elected President, then you should look to the kind of judges he appointed in Texas. Just today, I noted that some posters there had dredged up an article from the 2000 campaign season that reported, accurately, that Bush's appointments to the Texas Supreme Court had moved that Court to the left on culture war issues.
And it seems that only a very few of them, if I understand them correctly when they expand on their idea of originalism, would be satisfied with another Thomas, except from a results approach. There has been very little, if any, attention given to the profound difference between Scalia's crabbed originalism and Thomas' potentially expansive version, which acknowledges that the Constitution rests on the Declaration of Independence and Natural Law, an idea that is anthema to Bork, their hero.
Actually, I have posted on on that topic, making the distinction and offering that I prefer the judicial philosophy of Thomas.
Also, as Andrew said, none of us has ever declared that the filibuster is unconstitutional. I am about as fervently opposed to the filibuster as any (including legislative ones), and have never said that they were unconstitutional.
But, we are not a monolith, and not even all are opposed to Miers. I would say that our main objection is that she is not qualified for the Court - not that she would not be a judicial conservative (thoguh that poses a problem as well).