Miers

[J. Noble]

Bush can't be more enthusiastic about a 
confirmation fight, or feel more beholden to the 
Right, than he was a month ago when he nominated 
Miers with Harry Reid's endorsement. I suspect 
Bush is temperamentally disinclined to reward the 
right-wing forces that beat up Harriet Miers and 
handed him an embarrassing defeat. At the same, 
ironically, the right-wing has armed the 
Democrats against a hard-line conservative 
nominee with the argument that he is the product 
of capitulation to extremists; and the charge of 
capitulation gives the liberal wing of the GOP 
much the same cover that the charge of 
unqualified gave to the right wing of the party 
on the Miers nomination. Pat Buchanan yesterday 
was crowing "Oh happy day," but if the dynamic 
has changed, it seems to me that Bush has all the 
more motive and at least as much reason to rebuff 
the hard-liners with the kind of nominee 
described by Prof. Lipkin yesterday -- someone 
with solid credentials and bi-partisan support.

Maybe McConnell is that guy, but NOW/NARAL/Neas 
et al are going to hold more sway over Senate 
Democrats than liberal law professors; and 
they're going to be talking about Roe not Boerne. 
At the same time, Rick acknowledges that he would 
have at least some problem on his right flank 
where emboldened conservatives, giving no quarter 
these days, are going to view the support of 
liberal law professors as disqualifying. 
McConnell has all the qualifications that Miers 
didn't, but Miers' one advantage was that 
Democrats weren't sure that she wasn't another 
O'Connor, and Republicans weren't sure that she 
wouldn't vote in lock-step with Scalia. It seems 
to me that McConnell would arrive as a bigger 
target under heavier cross-fire than Miers at her 
departure.

Even if McConnell is confident of his own ability 
to dodge the bullets from the left and right, he 
would have to have doubts about how the 
nomination would be "handled" by an obviously 
dysfunctional White House while he's muzzled in 
the weeks preceding the Committee hearings. I 
wonder how many colleagues who really "like Mike" 
would advise him to put his public perception in 
the hands of the White House for six weeks.

John Noble

At 7:27 AM -0700 10/28/05, Rick Duncan wrote:
>Marci is right that some conservatives do indeed 
>have a problem with Mike McConnell. But they are 
>wrong. I have been smoothing the waters for Mike 
>with many of my conservative religious friends.
>
>Here are only some of the reasons why I like Mike:
>
>1. He is no friend of Substantive Due Process, 
>whether of the Lochner or the Lawrence strain. 
>He will not impose his own list of "fundamental" 
>liberties to strike down laws duly enacted by 
>state legislatures. He knows that the Due 
>Process Clause codifies neither Mr. Herbert 
>Spencer's Social Statics nor the Kama Sutra.
>
>2. Scalia's views about free exercise (he thinks 
>it doesn't exist) are not the views of most 
>social conservatives. Smith is wrong and Michael 
>knows it is wrong.
>
>3. Michael is also a strong supporter of the 
>Free Speech Clause, including the right to equal 
>funding (Rosenberger and Davey) and to 
>expressive association (Dale).
>
>The greatest threats to religious liberty today, 
>in my opinion, are unequal access for religious 
>citizens to the benefits of the Welfare State, 
>and present and future laws enacted by a society 
>so obsessed with "tolerance" that it is willing 
>to criminalize those who don't meet some 
>"tolerance" litmus test (e.g. Dale; the Swedish 
>prosecution for "hate speech" of the pastor who 
>preached about sexual sins). Religious 
>conservatives should embrace Michael McConnell 
>with open arms, because he would be the 
>strongest defender of the First Amendment on the 
>Supreme Court. I like Mike. A lot!
>
>Rick Duncan
>
>
>Hamilton02 at aol.com wrote:
>
>Just out of curiosity, why is McConnell 
>considered the sort of arch-Republican that 
>would be of interest?  He was endorsed for the 
>circuit court by numerous liberal law 
>professors, his Harvard article about the Boerne 
>case made him sound much closer to Souter than 
>Scalia/Rehnquist/O'Connor on federalism, and he 
>takes Brennan's liberal position on the Free 
>Exercise Clause, in contrast to Scalia's 
>conservative view.  Finally, in his O Centro 
>decision in the 10th Circuit, he endorsed a view 
>of judging that looks a lot like legislating 
>from the bench than a strict constructionist 
>would permit.  I know the answer is that he is 
>opposed to Roe v. Wade, but if that is the 
>answer, we need not debate anyone's conservative 
>credentials, but only need figure out where they 
>stand on that one decision, right?
>
>Marci
>
>
>In a message dated 10/27/2005 4:34:42 P.M. 
>Eastern Standard Time, thai at ou.edu writes:
>
>How about this for a Roveian strategy:
>
>
>
>1.  Nominate Brown first.
>
>
>
>2.  Nominate McConnell if sheâ*™s filibustered.
>
>
>
>Could be a win-win as far as satisfying his 
>right-wing base.  If Brown is filibustered, then 
>the base will have gotten the battle they wanted 
>based on ideology, and Bush will have an easier 
>time nominating another white male candidate, 
>who by contrast would be easier to confirm.
>
>
>
>Joseph T. Thai
>
>Associate Professor
>
>University of Oklahoma College of Law
>
>thai at ou.edu
>
>
>
>
>
>Rick Duncan
>Welpton Professor of Law
>University of Nebraska College of Law
>Lincoln, NE 68583-0902
>
>"When the Round Table is broken every man must 
>follow either Galahad or Mordred: middle things 
>are gone." C.S.Lewis, Grand Miracle
>
>"I will not be pushed, filed, stamped, indexed, 
>briefed, debriefed, or numbered." --The Prisoner
>
>
>
><http://us.lrd.yahoo.com/_ylc=X3oDMTFqODRtdXQ4BF9TAzMyOTc1MDIEX3MDOTY2ODgxNjkEcG9zAzEEc2VjA21haWwtZm9vdGVyBHNsawNmYw--/SIG=110oav78o/**http%3a//farechase.yahoo.com/>Yahoo! 
>FareChase - Search multiple travel sites in one 
>click.
>
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or 
>get password, see 
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large 
>list cannot be viewed as private.  Anyone can 
>subscribe to the list and read messages that are 
>posted; people can read the Web archives; and 
>list members can (rightly or wrongly) forward 
>the messages to others.
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/conlawprof/attachments/20051028/4023b293/attachment.html