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  1. #1
    Join Date
    Feb 2005

    A Supreme Mistake

    A supreme mistake
    "I went to the polls, and all I got was this lousy nominee"

    Alex Hyder, Online Staff Writer

    George W. Bush has always billed himself as a "uniter, not a divider." Now, at long last, the President has lived up to his promise: the nomination of Harriet Miers to the Supreme Court has united secularist liberals and hard-line conservatives — against his decision. Moderate liberals put up with Bush's aggressive foreign policy in the hopes that he would nominate a judge whose decisions were based on legal, rather than religious, grounding. Conservatives supported Bush, in spite of his stratospheric spending and refusal to veto pork-laden bills, hoping that he would nominate a judge with a conservative legal philosophy — one that advocates the strict interpretation of the Constitution. In one fell swoop, Bush has managed to alienate both constituencies, effectively biting the hand that fed him and his party during the tumultuous elections of 2004.

    Imagine, for a minute, that you and a few of your friends have a softball team together. Let's say that your team gets lucky and is slated to play the team across town for the county championship. The week before the game, your first baseman — let's call her Sandra — gives you a call, saying she won't be able to play. Luckily, you work as a publicist for MLB and are friends with many of the league's superstars, all of whom would be eager to take Sandra's place. Your team is abuzz: who will you call to play on your team? Will it be Albert Pujols? Derrek Lee? David Ortiz? You have a bevy of heavy hitters at your disposal, so imagine the team's astonishment when you show up the day of the championship with—get ready for it—some friend of yours you knew from an old job. Few people have ever heard of her, let alone seen her at bat, but she says she can play the game as good as anyone.

    In the beginning of October, Bush was left with a similar gap to fill. Instead of a first baseman, Bush needed an Associate Justice of the Supreme Court to replace Sandra Day O'Connor. Instead of affecting the outcome of a softball tournament and determining which team will carry home a glistening trophy, the outcome of his decision will affect the rulings made by the highest court in the land for years to come.

    Instead of a field of major-leaguers, he could have chosen from any of a number of qualified lawyers and judges, each of whom has clear views on the Constitution and is wholly qualified to fulfill the duties of the position. And instead of a relative unknown you met at work, Bush nominated, well, a relative unknown he met at work, whose greatest accomplishment as a lawyer is probably her reform of the Texas Lottery. Miers has never argued a case before the Supreme Court or even submitted a brief that was used in one. As a matter of fact, she has never served as a judge in any capacity. Why, then, did Bush decide she was qualified to sit on the Supreme Court?

    Bush's choice is, indeed, baffling. Perhaps it was Miers's evangelical background that appealed to the commander in chief. Perhaps it was her loyalty to him, both in Houston and in Washington. Perhaps it was her "Texas charm," whatever that is. But in all likelihood, Miers' nomination was the product of appeasement. Bush, thinking that his conservative base would rather see a weak nominee than a filibuster fight, caved in to the minority leader Harry Reid's threat to filibuster nominees Democrats felt were "too conservative" and appointed a moderate. In doing so, he found himself with more than he bargained for —rather than being acclaimed on both sides of the aisle, Miers has been blasted by Democrats and Republicans alike.

    The shame in this stems from the fact that Bush could have nominated any of a host of qualified candidates. Alberto Gonzales, the attorney general who has held several high-level judicial posts, is certainly qualified to sit on the Supreme Court. So is Fourth Circuit Appellate Judge J. Michael Luttig, who worked for the Justice Department under Bush's father, and who worked with Justices Souter and Thomas in preparation for their respective confirmation hearings.

    Neither Gonzales nor Luttig has been afraid to take the tough positions on hot issues that conservatives ask of their nominees, and both appear to be guided primarily by a judicial, not religious, philosophy. In fact, while serving as a judge on the Texas Supreme Court, Gonzales once voted to allow a 17-year-old to have an abortion without parental notification—not because of some abstract notion of right or wrong, but simply because the law allowed her to do so. Gonzales went on to say that siding against the ruling would constitute "an unconscionable act of judicial activism."

    Appointing a justice with such a legal philosophy would bring the integrity that conservatives demand to the Court while satisfying the left's craving for the complete separation of church and state. Instead, Bush has appointed his crony, a judge whose ideological positions are a gamble.

    Even if Bush felt he had to nominate a woman to the Court in order to maintain its diversity, he could have chosen from any of countless female judges. Priscilla Owen, for instance, would have been a perfect candidate to fill O'Connor's preponderous shoes. Like Miers, Owen was a Bush appointee in both Houston and Washington, having served on the Supreme Court of Texas and on the Fifth Circuit Court. Unlike Miers, Owen has years of judicial experience under her belt, an established view on interpreting the Constitution, and a visible and consistent conservative record that, after coming to light during the Democrat-led filibusters of 2003, has already made her popular among Bush's Republican base. Owen, or a number of judges like her, would have filled O'Connor's spot admirably.

    Instead, conservatives now fear that, if confirmed, Bush's nominee — "their" nominee — will not be able to keep up with shrewd liberal legal minds like Ruth Bader Ginsberg and Stephen Breyer. Conservatives would rather see Bush appoint a justice with a solid legal background, even if making such an appointment would mean facing a filibuster, than see him compromise and appoint a justice whose inexperience would likely make her the laughingstock of the Supreme Court.

    What most irks conservatives about Miers, however, is her apparent lack of a conservative judicial philosophy—or, for that matter, any judicial philosophy. Ever since Roe v. Wade, right-wingers have complained about "judicial activism" and judges who "legislate from the bench." And rightly so. In recent years, the American legal system has overstepped its bounds, becoming an instrument of binding decision on matters, such as abortion and school prayer, that are the constitutional province of those branches of government whose members are elected, not appointed. It is the job of Congress and the President to represent public opinion, reads Republican legal doctrine; the Supreme Court's sole duty lies in standing for the law and its meaning.

    Miers, however, has not demonstrated that she espouses this originalist position on interpreting Constitution, despite the fact that it is the stand taken by many conservative legal scholars. As a matter of fact, she has yet to indicate that she holds any views, other than those of her evangelical church. If it is her religious views, not her legal ones, that guide her decisions, then conservative legal scholars have every reason to oppose her, because Miers will be little more than another activist judge, albeit one with conservative leanings. As the saying goes, "hard cases make bad law," and hard cases decided by judges willing to step outside the constraints of the Constitution can only make for the continued erosion of the separation of powers.

    However, as so little is known about her Constitutional views, most conservatives consider her a coin flip: on one hand, Miers, if confirmed, could take part in rampant judicial activism. On the other hand, she could indeed hold originalist views on the Constitution. Rather than going with a sure thing and nominating a candidate like Gonzales, Luddig or Owen, the President has bet on a long shot and his bird in hand in favor of two, no pun intended, in the bush.

    Unlike the aftermath of Katrina and Rita, this mess can be cleaned up rather quickly. First, Bush should withdraw his nomination of Miers. Unfortunately, this seems unlikely. Although Bush surely realizes that the Miers nomination has resulted in a wave of public backlash, he will continue to lobby for her because, as blogger Rogers Cadenhead said, "The president's so stubborn that were he captain of the Titanic, he would have run the ship into a second iceberg to prove he meant to hit the first one."

    In fact, changing his mind on such a major appointment would be unthinkable for a President who continually (and, some would say, justifiably) ridiculed his opponent for "flip-flopping" in the months leading up to the 2004 election. America's only recourse, then, is to demand that Miers withdraw herself from consideration. If she cares about the state of Constitutional law in the United States half as much as Bush insists she does, she will do so post haste.

    George W. Bush had the opportunity to bring new vitality to the Supreme Court by nominating a young justice with conservative views on the Constitution. Instead, he chose his friend, and alienated the entire country in the process. Well done, Dubya. Well done.

  2. #2
    Join Date
    Feb 2005

    Re: A Supreme Mistake

    Right Wingers Getting Nervous as Miers' Role in Bush Corruption Unfolds

    Bush corruption, previously put behind and buried is being unearthed and could come to light in Senate judicial committee hearings. And one of the Judges Bush Brought to DC to endorse Harriet is deeply involved.
    by Rob Kall


    An army of skeletons thought hidden deep in the recesses of Texas closests are coming to life as a result of Bush's nomination of longtime crony and protectress, Harriet Miers.

    Jerome Corsi, right wing author of Unfit for Command – Swift Boat Veterans Speak Out Against John Kerry has written an extensive series of articles attacking George W. BUsh's Miers Supreme Court nomination. This is one right wing extremist who knows the danger of opening an old can of worms. While an honest, a-political person might want to see corruption uncovered and exposed, Mr. Cosi suggests "It's time for the President to withdraw this dreadful nomination or, if politics dictate, Harriet Miers to withdraw herself from consideration," arguing " so we might avoid another long, painful, and needless examination of old matters that probably would be better off never exhumed.

    In the latest article, published in Worldnetdaily.com, titled,
    Miers was player in Texas Lottery coverup, Corsi reports:

    Larry Litwin was fired in 1997 as executive director of the Texas Lottery Commission because then-Governor George Bush wanted an investigation into possible criminal political-influence buying squashed, and then-commissioner Harriet Miers, a Bush appointee, complied with his wishes and terminated him – that is the story Litwin is prepared to tell the Senate Judiciary Committee.

    The article reports that Littwin was hired to run the Texas lottery as executive director. Within three months of being hired, he issued several memos. Cosi's Worldnet article reports,

    ...ordering a thorough search for political campaign contributions that may have been made by GTECH to a comprehensive list of Texas legislators and state officials...

    Littwin had reason to be suspicious. In January 1997, federal prosecutors in New Jersey had released a pre-sentencing report in the criminal conviction of J. David Smith, GTECH's national sales manager, which mentioned former Texas Lt. Governor and GTECH lobbyist Ben Barnes as having been involved in a criminal kickback scheme... Littwin wanted to investigate those charges and determine how deeply the corruption reached into Texas politics. Prior to his indictment in New Jersey, J. David Smith bragged he had bribed some ten Texas legislators to secure their votes when the lottery bill was before the Legislature. Lottery Commission chairperson Miers assured the Austin American-Statesman these charges against Barnes would be investigated. WND can find no record of any investigation actually undertaken, despite the accusations of criminal activity.

    Just days after Littwin started at his lottery commisison job, the Texas attorney General forced the release of information that former Texas Lt.Governor Ben Barnes was paid a severance fee of $23 million dollars. It has been suggested that he was paid to keep silent on what he knew about George Bush's evasion of the draft through his disputed national guard service, where it has been suggested that he failed to show up for a medical exam, possibly because he was using drugs. (Though Corsi obliquely mentions that the Miers appointment has re-opened the national guard case, he does not, in this article, tie it to the Ben Barnes payoff.)

    Corsi does report that Miers and former Texas Supreme Court Justice John Hill,the newest member of the Texas lottery commission, in unison with Miers, said that the situation should be investigated. Corsi reports that no evidence of any such investigation could be found, and comments,

    This was not the first time Hill and Miers spoke with one voice. In 1999, Miers' Dallas law firm, Locke, Purnell, Rain & Harrell, merged with Judge John Hill's Houston firm, Liddell, Sapp, Zivley, Hill & LaBoon, to form Locke, Liddell & Sapp. Judge Hill appeared in Washington last week as one of the Texas former Supreme Court Justices brought to the Capitol to buttress Harriet Miers' troubled nomination.

    Commissioners Hill and Miers were desperate to calm the public uproar.

    On October 18th, Bush brought in two Texas judges to support his nomination of Miers, CNN reported what one of them, Judge John hill had to say:

    "Mr. President, we just all want to thank you for this nomination," said John Hill Jr., a Democrat who was chief justice of the Texas Supreme Court from 1985 to 1988 and served with Miers on the Texas Lottery Commission.

    "We are excited about it, and we are here to try and let the people of America know what we all know, which is that she is an absolutely fantastic person and a great lawyer and will make a great judge," he said.

    "We actually know Harriet Miers; I hope that still counts for something, somewhere," Hill said. "I'd trust her with my wife and my life."

    Putting Judge Hill's potentially crooked connection with the Texas lottery corruption cover-up puts his exuberant endorsement of Miers in a very different context. He was, and possibly still is her partner in her law firm and possibly in a criminal coverup.

    Apparently, Litwin was silenced just days after he showed signs of getting serious about his inquiry. Before the three member lottery commission (Miers, Hill and someone else) ordered Littwin to stop the investigation, Corsi reports in his article that Bush, then Governor of Texas chimed in,calling Littwin "overzealous, and unleashing his attack dog, governor's spokesperson Karen Hughs on him, saying,

    "If it was an attempt in any way to embarrass or intimidate key members of the Legislature or the executive branch, then Governor Bush strongly objects."

    It's clear, as investigator Patrick Fitzgerald has been discovering in the Plame Outing case, Bush learned his lesson, not to directly comment when people are disclosing his connection to nefarious, corrupt or illegal activities.

    Corsi says, Commissioners Hill and Miers were soon on the same page with Governor Bush, determined to stop Littwin" and John Hill "told the newspaper. "We made our position clear. I'm sure [the investigation's findings] won't be reported."

    A few days later, Corsi reports,

    On October 2, 1997, Lottery Commissioners Miers and Hill told the Dallas paper they had not approved the records search Mr. Littwin had undertaken. In the same article, Littwin defended himself: "Specifically, in the exercise of due diligence with provisions of our vendor contracts, I felt this research and review was important in order to determine if any financial contributions had been made by GTECH."

    Corsi reports that a few days later, the Texas Lottery commission met and voted to fire Littwin, not even five months after he was hired. A new director, Linda Cloud, was hired to replace Littwin. The Morning News reported that she was not going to continue competitive bidding for the gtech contract, though lower bids were already on the table.

    Will the Senate's judicial committee ask the questions necessary to shed full light on this story? Littwin has been silenced by a gag order that was part of his settlement with Gtech regarding his wrongful termination. We'll see whether money trumps truth as it has so far in this sordid tale. One thing seems more certain, Harriet is not the sweet but clueless sycophant she's been portrayed as. She's another crooked, dishonest violator of the public's trust. If the Republican Party does not revile her nomination it will be another clear proof of how low the GOP has fallen.

    Rob Kall is editor of OpEdNews.com, President of Futurehealth, Inc, and organizer of several conferences, including StoryCon, the Summit Meeting on the Art, Science and Application of Story and The Winter Brain Meeting on neurofeedback, biofeedback, Optimal Functioning and Positive Psychology.

    Last edited by sojustask; 10-25-2005 at 04:42 PM.

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