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The Long Game: Voting against Harriet Miers might come back to haunt Republican senators.
Weekly Standard ^ | 10/24/5 | John Hinderaker

Posted on 10/24/2005 9:28:23 AM PDT by Crackingham

President Bush's nomination of Harriet Miers to the Supreme Court has divided the conservative movement. Initially, most conservatives, but not quite all, expressed disappointment with the nomination. Since then, paths have diverged. Some conservatives, having gone on record as wishing that Bush had chosen someone else, have now migrated back into the fold, pronounced Miers a qualified candidate, and defended her nomination as the president's prerogative. Other conservatives have continued to ratchet up their attacks on Miers. Nearly every day produces yet another instance of Miers's alleged incompetence, inexperience, or suspected liberal sympathies.

Some of the criticisms of Miers are trivial; others are unfair. A few are better grounded, but at the same time, could have serious implications if Republican senators accept them as legitimate grounds to oppose her nomination.

SNIP

Republicans have long taken the position that, because it is the president's prerogative to select Supreme Court justices, any nominee who is qualified and doesn't subscribe to an extreme judicial philosophy should be confirmed. Some Miers critics seem now to imply a new standard by mocking Miers as undistinguished, or by pointing out how much more qualified other potential nominees would have been. Such attacks carry a hazard. Until now, the judicial confirmation process has never been seen as one where senators can reject a qualified nominee on the ground that he or she isn't the nominee the senators wanted, or the one the senators consider the best.

But many conservative critics of Harriet Miers come perilously close to urging that standard on Republican senators, in hopes that, if Miers is defeated, the president will go back to the candidate pool more favored by conservatives. But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.

A second avenue of conservative attack on Miers, somewhat related to the first, likewise could change the assumptions that have heretofore underlain the confirmation process. The biggest concern of many on the right is that Miers may not be a "real" conservative. Many Republicans, stung by the examples of Souter, Stevens, and others, believe that only a nominee with a

long paper trail, demonstrating a commitment to both political conservatism and to a judicial philosophy like "originalism," can be counted on, long-term, to defend conservative principles on the Court.

From this perspective, Miers is deemed unacceptable because she has not spent years wrestling with, and writing about, Constitutional issues; nor has she articulated a clear--and clearly conservative--theory of Constitutional interpretation. But there is a simple reason for this: Miers has spent her life in private practice. A private practitioner does not devote her time to developing theories of Constitutional interpretation. If a paper trail firmly identifying a nominee as an "originalist," or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices.


TOPICS: Constitution/Conservatism; Culture/Society; Government; News/Current Events; Philosophy; Politics/Elections
KEYWORDS: 109th; crony; cronyism; harrietmiers; hindraker; justicemiers; miers; patronage; politicalhack; scotus; shillingformiers; spoilssystem; supremecourt
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1 posted on 10/24/2005 9:28:24 AM PDT by Crackingham
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To: Crackingham
The biggest concern of many on the right is that Miers may not be a "real" conservative. Many Republicans, stung by the examples of Souter, Stevens...

How does Souter feel knowing dems don't accept him and we can't stand him?

2 posted on 10/24/2005 9:33:10 AM PDT by GOPJ (Protest a democrat -- light your hair on fire -- and the MSM still won't take your picture.)
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To: Crackingham
If a paper trail firmly identifying a nominee as an "originalist," or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices.

Is this a backhanded attempt to call some anti-Miers elitist? We know that's just not true.

3 posted on 10/24/2005 9:36:56 AM PDT by TheDon (The Democratic Party is the party of TREASON!)
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To: GOPJ

Maybe he likes being a maverick, like john mcvain.


4 posted on 10/24/2005 9:38:02 AM PDT by flashbunny (What is more important: Loyalty to principles, or loyalty to personalities?)
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To: Crackingham
If, on balance, the Senator can state reasons for not voting for Miers after she has been fairly heard then I would not hold it against them. What cheeses me off is the vitriolic seeming lockstep mentality of sheep blindly following the media sound bite lynching.

Asking for with drawl is a cop out, no matter what her hearing will bring out some issues that a more mainstream candidate might not.

5 posted on 10/24/2005 9:38:43 AM PDT by Mike Darancette (Mesocons for Rice '08)
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To: GOPJ
How does Souter feel knowing dems don't accept him and we can't stand him?

I hope he is tortured by unspeakable anguish, but I doubt it.

6 posted on 10/24/2005 9:40:11 AM PDT by NeoCaveman (In DC, Pork is what's for dinner)
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To: Crackingham

An interesting summation of the weeks events.


7 posted on 10/24/2005 9:40:24 AM PDT by Earthdweller
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To: Crackingham
Until now, the judicial confirmation process has never been seen as one where senators can reject a qualified nominee on the ground that he or she isn't the nominee the senators wanted, or the one the senators consider the best.

Straw man.

The "not the best" arguments are critical of the decision to nominate, and not given as a reason to vote against.

The arguments to vote against are based on "not qualified", not "qualified but not the best".

The author has made up a position to argue against.

8 posted on 10/24/2005 9:46:10 AM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: Crackingham
"If a paper trail firmly identifying a nominee as an "originalist," or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices."

Well, at least someone "gets" it.

9 posted on 10/24/2005 9:47:09 AM PDT by Reactionary
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To: Crackingham
But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.

Calling Robert Bork to the white courtesy phone...

It's dangerously naive to think that the Democrats will be stopped from taking any action that they believe is in their benefit due to lack of reasonable justification.

10 posted on 10/24/2005 9:48:20 AM PDT by thoughtomator
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To: Crackingham
From this perspective, Miers is deemed unacceptable because she has not spent years wrestling with, and writing about, Constitutional issues

She hasn't spent 5 minutes, let alone years.

This is the woman who denied ever discussing landmark SC cases with anyone.

11 posted on 10/24/2005 9:48:33 AM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: Mike Darancette

If, on balance, the Senator can state reasons for not voting for Miers after she has been fairly heard then I would not hold it against them.



The process should play out and the Senators need to get on record with an up/down vote.... Nothing wrong with that or them voting not to confirm a nominee. That way it comes full circle and no one is pushed beyond their authority within the process.


12 posted on 10/24/2005 9:49:10 AM PDT by deport
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To: Reactionary
But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.

I had not realized that the RATS needed an excuse for filibustering well qualified mainstream Republican candidates. They have been doing that already.

13 posted on 10/24/2005 9:50:44 AM PDT by jackbenimble (Import the third world, become the third world)
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But many conservative critics of Harriet Miers come perilously close to urging that standard

In other words, no one has advocated that.

John Hinderaker -- moron.

14 posted on 10/24/2005 9:51:04 AM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: Crackingham
Voting AGAINST Miers should be the easiest decision of any Senator's life.

There simply is not enough known about her to grant her a lifetime appointment to the Supreme Court. What is known about her is not impressive and some is even discouraging.

If the founders wanted the president to have free reign appointing justices to SCOTUS, they would not have designed the ADVISE AND CONSENT role of the Senate.
15 posted on 10/24/2005 9:52:03 AM PDT by msnimje
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To: Reactionary

"If a paper trail firmly identifying a nominee as an "originalist," or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices."

Well, at least someone "gets" it.




Walter E Williams is an economist and author. However, he has written more on the constitution and bill of rights than harriet miers ever dreamed of writing.

The quoted sentence is rather silly. All you need is evidence that the person is a strong, known originalist - it doesn't necessarily have to be as a judge or law professor. But it certainly can't be a complete blank slate like Miers.


16 posted on 10/24/2005 9:59:16 AM PDT by flashbunny (What is more important: Loyalty to principles, or loyalty to personalities?)
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To: msnimje
Advise and Consent.

It doesn't mean to get to know that person. Only means the question "Is the appointee qualified"
17 posted on 10/24/2005 10:00:09 AM PDT by PureTrouble
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To: TheDon
If a paper trail firmly identifying a nominee as an "originalist," or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices.

Is this a backhanded attempt to call some anti-Miers elitist? We know that's just not true.

hardly backhanded. It flat out states the rationale for those who make the charge. In fact, it is patently self evident that, if the formulation is true, then those that hold to this position are absolutely being elitists, in every since of the word.

As to what "we know," I don't think you and I would agree on who "we" are, nor on what anyone can be said to know at this point in the debate. Anyone who claims that they have all the information they'll ever need and refuse to look at any other evidence are just a bit too arrogant and ignorant for my tastes.

Helluva combination.

18 posted on 10/24/2005 10:06:56 AM PDT by Phsstpok (There are lies, damned lies, statistics and presentation graphics, in descending order of truth)
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To: Phsstpok

Oops! I forgot something. < /sarcasm >


19 posted on 10/24/2005 10:23:19 AM PDT by TheDon (The Democratic Party is the party of TREASON!)
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To: JohnnyZ

I haven't heard anyone (paticularly a senator) articulate why Mier's is "not qualified" so I would say the author is dead on in his analysis of the opposition.


20 posted on 10/24/2005 10:38:10 AM PDT by Smogger
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To: Smogger
I haven't heard anyone (paticularly a senator) articulate why Mier's is "not qualified"

Really? I've read and heard hundreds of friends, FReepers, and writers argue just that very convincingly.

Moreover, I have not heard a single person argue convincingly that Miers is qualified.

21 posted on 10/24/2005 10:44:43 AM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: TheDon

conclusion jumping is one of my best events. I'm of Olympic caliber in that regard ;^>


22 posted on 10/24/2005 10:50:17 AM PDT by Phsstpok (There are lies, damned lies, statistics and presentation graphics, in descending order of truth)
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To: Crackingham

just another example of how W screwed the pooch w/ this nomination.


23 posted on 10/24/2005 10:54:15 AM PDT by Pietro
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To: JohnnyZ

Well then perhaps you can articulate in a few sentances precisely what makes her unqualified.


24 posted on 10/24/2005 11:06:04 AM PDT by Smogger
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To: GOPJ
How does Souter feel knowing dems don't accept him and we can't stand him?

It is doubtful that the schizoid Judge Souter has enough contact with external reality to actually be aware of this.

25 posted on 10/24/2005 11:22:07 AM PDT by hinckley buzzard
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To: Crackingham
The Democrats abandoned playing by those rules LONG ago. That is one of the reasons the Supreme Court is dominated by left-wing judicial activists. The Democrats block qualified conservatives like Robert Bork while the Republicans allowed qualified ACLU lawyers like Ruth Bader Ginsberg to be confirmed almost unanimiously.

You and Hinderaker apparently value the principle of in the way the process should be conducted over doing whatever is necessary to change the direction on the court. You want Republicans to take what you consider to be the high road while the Democrats are playing dirty and only looking at the ideology of nominee. That’s is WHY conservatives are losing.

Republicans in the Senate need to play the game the way the Democrats are and only vote to confirm judges that are proven originalists. Presidents aren't kings. The process allows for the Senate to reject any nominee for any reason. Frankly, rejecting a nominee because he or she isn’t an originalist is a very good reason.

26 posted on 10/24/2005 11:24:18 AM PDT by Ol' Sparky
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To: Smogger
No history of judging, writing about, even thinking about(!) issues in constitutional law.

Embarassing writing and argumentative ability ~~ 'the answer to society's problems is for everyone, young and old, rich and poor, male and female, tall and short, to commit themselves to solving society's problems' (slight paraphrase)

Essentially she doesn't have any experience dealing with constitutional law and has shown nothing which would suggest that she has a particular aptitude for it.

27 posted on 10/24/2005 11:44:36 AM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: JohnnyZ
No history of judging, writing about, even thinking about(!) issues in constitutional law.

She's not a judge, and how do you know what she has thought about?

I wasn't aware that being an expert in constitutional law was a prerequisite for being a supreme court justice. I am no expert on the Constitution, but I don't believe there are ANY qualifications to sit on the Supreme Court.

28 posted on 10/24/2005 1:38:31 PM PDT by Smogger
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To: Smogger
I am no expert on the Constitution, but I don't believe there are ANY qualifications to sit on the Supreme Court.

There are none listed in the Constitution.

But we do have common sense -- at least some of us do. The Constitution would allow a 5-year-old Ethiopan to be nominated -- after all, there are no Constitutional qualifications. But there are qualifications for those who know how to use the brain God gave them. Heck, Bush said Miers was the "most qualified" he could find!!! Surely there must be qualifications then. What Bush thinks they are, Lord only knows.

29 posted on 10/24/2005 1:44:03 PM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: Crackingham
But many conservative critics of Harriet Miers come perilously close to urging that standard on Republican senators, in hopes that, if Miers is defeated, the president will go back to the candidate pool more favored by conservatives. But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.
30 posted on 10/24/2005 1:47:18 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: flashbunny
All you need is evidence that the person is a strong, known originalist

In the case of a non-judge without a written history, how would you know a person was an originalis? And doesn't that mean that only those who can PROVE they're an originalist are eligible?

31 posted on 10/24/2005 1:51:41 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: GOPJ

Probably glad that he dodged a bullet. Exactly which one, I do not know, but something must explain his change in posture.


32 posted on 10/24/2005 1:51:53 PM PDT by RobbyS ( CHIRHO)
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To: Crackingham

"Republicans have long taken the position that, because it is the president's prerogative to select Supreme Court justices, any nominee who is qualified . . . ."

1) Keeping a bowl of M & Ms in her office does not make up for not knowing important constitutional cases. She's not qualified.

2) While the Republicans may have taken such a position, the Dims don't play by the same rule book. They slash and burn. The court will not be returned to faithful constitutionalists unless conservative senators insist on such, regardless of whether the nominee was picked by a Republican or Dim president.


33 posted on 10/24/2005 1:52:10 PM PDT by reelfoot
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To: flashbunny

My sister worked for a top lawyer. Cases involving constitutional questions seldom came his way.


34 posted on 10/24/2005 1:54:17 PM PDT by RobbyS ( CHIRHO)
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To: reelfoot

Whatever you call it, if Pubbies can play that game, so can the Dims.


35 posted on 10/24/2005 1:55:27 PM PDT by RobbyS ( CHIRHO)
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To: GOPJ
How does Souter feel knowing dems don't accept him and we can't stand him?

I would guess he feels pretty down by all of it. But after a good long hard jog in the park I am sure he feels much better.

36 posted on 10/24/2005 1:57:03 PM PDT by pepperhead (Kennedy's float, Mary Jo's don't!)
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To: Mike Darancette
It is time to cop out:

The Los Angeles Times reports "many constitutional experts" are "shaking their heads" over a written answer Miers gave the Senate Judiciary Committee: "Miers described her service on the Dallas City Council in 1989. When the city was sued on allegations that it violated the Voting Rights Act, she said, 'the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.' "

The Washington Post reports that under Miers's leadership, the Texas Bar Association "embraced racial and gender set-asides and set numerical targets to achieve that goal." This may raise the hackles of people who believe in equality -- though in fairness we should note that this sort of discrimination is so commonplace in the private sector that it may be unfair to infer anything about Miers's personal or legal beliefs here.


from Best of Web Today.

However good she is in "real life," the Ms. Miers is not cut out to be a Supreme Court Justice.
37 posted on 10/24/2005 1:58:30 PM PDT by Little Ray (I'm a reactionary, hirsute, gun-owning, knuckle dragging, Christian Neanderthal and proud of it!)
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To: ez

"And doesn't that mean that only those who can PROVE they're an originalist are eligible?"

If that's what the president promised while on the campaign trail, shouldn't that be a requirement?


38 posted on 10/24/2005 1:58:40 PM PDT by flashbunny (What is more important: Loyalty to principles, or loyalty to personalities?)
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To: ez
And doesn't that mean that only those who can PROVE they're an originalist are eligible?

Yes. Or, you could just take it on faith. Geez, I would LOVE to sell you a used car!!!

39 posted on 10/24/2005 2:05:56 PM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: flashbunny
If that's what the president promised while on the campaign trail, shouldn't that be a requirement?

It should be a requirement. That's why between that promise and her stated contention that she will be an originalist, I believe she will be an originalist.

My point is that if she has no indicatory record, one must accept the word of the people that know her.

40 posted on 10/24/2005 2:07:34 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: JohnnyZ
Yes. Or, you could just take it on faith.

Because we are at a critical time in our history, with Hillary! seeking to discredit Republicans ala Nixon just before she runs, I have decided to take it on faith.

41 posted on 10/24/2005 2:09:24 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: ez

In addition, there's some oceanfront property on the Vermont coast that I really think you'd like. You can't actually visit it before you buy, but trust me, you're really gonna enjoy that sea breeze!


42 posted on 10/24/2005 2:11:21 PM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: Crackingham
Methinks this nomination was,is,and will be,the straw women. You know create a straw-person, let the opposition tear it to shreds, then present the dark horse. We will see if the nomination is withdrawn, and the real nominee steps forward and is substituted.
W. did one switch why not two?
43 posted on 10/24/2005 2:12:05 PM PDT by TUX (Domino effect)
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To: ez
Because we are at a critical time in our history, with Hillary! seeking to discredit Republicans

Ah, the "Hillary made me do it" defense, trotted out as an excuse for voting for liberals, giving up freedoms, and accepting unqualified Supreme Court nominees.

44 posted on 10/24/2005 2:13:45 PM PDT by JohnnyZ ("She was appointed by a conservative. That ought to have been enough for us." -- NotBrilliant)
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To: JohnnyZ
<>i>In addition, there's some oceanfront property on the Vermont coast that I really think you'd like. You can't actually visit it before you buy, but trust me, you're really gonna enjoy that sea breeze!

In the future, I will ignore your unserious, more childish comments and focus on actual arguments.

45 posted on 10/24/2005 2:15:58 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: JohnnyZ
Ah, the "Hillary made me do it" defense, trotted out as an excuse for voting for liberals, giving up freedoms, and accepting unqualified Supreme Court nominees.

I don't need a defense, I'm taking George Bush and Harriet Miers at their word.

46 posted on 10/24/2005 2:17:44 PM PDT by ez (Extremism, like all else, should be applied in moderation.)
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To: PureTrouble
Advise and Consent.
It doesn't mean to get to know that person. Only means the question "Is the appointee qualified"

It means whatever each Senator thinks it means. "Advise & consent" is a term of art, much like "High crimes and misdemeanors" is. In the end, it is somewhat a political question, because the Senator will have to answer for his vote, to his constituency.

47 posted on 10/24/2005 2:18:07 PM PDT by Cboldt
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To: JohnnyZ

PS Thanks for the new tagline.


48 posted on 10/24/2005 2:19:32 PM PDT by ez (I believed Juanita Broaddrick and I believe Harriet Miers.)
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To: Ol' Sparky
Republicans in the Senate need to play the game the way the Democrats are and only vote to confirm judges that are proven originalists. Presidents aren't kings. The process allows for the Senate to reject any nominee for any reason. Frankly, rejecting a nominee because he or she isn’t an originalist is a very good reason.

I wish we had 50 Senators who would reject any nominee that doesn't respect the Constitution and would go to ANY lengths, including the "nucular" option, to confirm those that openly do.

49 posted on 10/24/2005 2:26:01 PM PDT by You Dirty Rats (Lashed to the USS George W. Bush: "Damn the Torpedos, Full Miers Ahead!!")
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To: ez

problem is, she does have a 'record' that is coming out against her, and "trust me" isn't much of a defense against it.


50 posted on 10/24/2005 2:27:56 PM PDT by flashbunny (What is more important: Loyalty to principles, or loyalty to personalities?)
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