Walters World

A few months ago Samuel Alito was mentioned at the top of any list of potential SCOTUS nominees. Since then, he has fallen off of most short lists. What happened?

1. O'Connor resigned, instead of Rehnquist. This increased the pressure for a female nominee.
2. Alito seems to be everyone's third or fouth choice. This means that he does not have anyone pushing hard for him.
3. The "Gang of 14 Deal" happened. This pushed 3 names (Brown, Owen, Pryor) up, and also simultaneously increased uncertainty about the fillibuster.

Samuel Alito, Jr. is an impressive candidate. He is a graduate of Princeton University and Yale Law School. He held mid-high positions in the Reagan Administration and then was US Attorney for New Jersey. Bush 41 placed him on the 3rd US Court of Appeals (NJ, PA, DE) where he has served since 1990.

Partly because of his name and Italian heritage, partly because of his opinions, he has obtained the nickname of "Scalito", or Little Scalia. This certainly makes him attractive to Originalists and Conservatives. He is "Chief Justice" material.

Over the past months his downsides have become more apparent:

1. He is 55 years old, middle of the pack age wise. However, both Luttig and Roberts are 50, and a few candidates (Gonzalez, Estrada, Pryor) are in their 40s. This is a lifetime appointment, and 5 years can mean the difference between retiring in a Democrat vs. Republican administration.
2. He is not particularly telegenic.
3. He has a relatively long paper trail (15 years on the 3rd Circuit) that will give critics ammunition.
4. Politically his nomination makes little sense. He would not particularly excite the Base, the 2 NJ Senators will oppose him and he will be fillibustered.
   

Few people believe that he is on the short list. However, were Rehnquist (or others) to retire, you will probably see his name rise again.

There is quite a Priscilla Owen boomlet going on right now. Since the original short lists for the next SCt appointment assumed the need to replace Chief Justice Rehnquist, the concentrated on males with the stature to be Chief Justice. However, with the unexpected resignation of O'Connor, the political calculus changed. The short list was short on women. Now the President has insisted that Owen's name be added to short list. The only other women mentioned regularly are Janice Rogers Brown and the two Ediths from the 5th Circuit.

Owen has certain reasons to recommend her, besides being a woman. She is highly qualified, having spent many years on the Texas Supreme Court before being seated on the US 5th Circuit. She is also one of the "special 3" specifically cleared by the "Gang of 14" deal that averted the fillibuster showdown. Nomination of any of these 3 (Owen, Brown and Will Pryor) to the SCOTUS would make it particularly difficult for Democrats to argue against them - after all, they just approved them. Lastly, it has been reported that the President wants to appoint a Texan.

Lost in all the fighting and hype is the fundamental question: is Owen a conservative, an Originalist, or neither. In fact, it is very difficult to tell.

Most of what we have to go on is Owen's TX Supreme Court record. However, it is limited in many ways:

1. It hears only civil cases. We have no idea what Owen thinks about criminal law.
   
2. Owen was NOT the most conservative member of the TX SCt. Not by a long shot. That honor goes to Nathan Hecht. She frequently made rulings that are centrist, at best.
   
3. The TXSpCt did not deal with the type of Constitutional questions that are crucial on the SCOTUS.
4. She is NOT a social conservative, and no friend of the "Religous Right". She was "appalled at the Justice Sunday" event - which was largely responsible for forcing action on her nomination.
5. She had no interest in politics in her past.
6. She is single (divorced), lives alone, has no children and is reclusive. This kind of person is particulary vulnerable to getting sucked into the whole DC rich-white-liberal dinner party scene that makes Justices "grow in office".
   

Just because liberals opposed Owen does not mean that we should support her. Recall that Ted Kennedy opposed Souter. Liberals have had the stated goal of keeping women and minorities off of the Courts of Appeal, specifically to make it difficult to appoint such folks to the SCOTUS.

Owen shows is too much of an unknown to risk appointing her to the SCOTUS. Janice Rogers Brown is clearly the better choice.

Once again the NY Times informs us that liberal means "centrist". Today's example is Linda Greenhouse's article Court's Term a Turn Back to the Center. This is not the first heavily biased recent article on O'Connor (approving O'Connor's steady move to the left). She is also the author of a fawning book about former Justice Blackmun, author of the Roe v. Wade decision, the Mother of All Judicial Activism.

Greenhouse sees her elite, white liberal worldview as "centrist". Anyone to the right of her, is of course a conservative. I don't know how you can write for this paper and see the world any other way.

Here are her examples of the Court "returning to the center":

1. Property Rights: the Court allowed, for the first time, governments to take your home if they say they can recieve more taxes (Kelo v. New London); this is accomplished by tossing out the word "public" from the term "public use";
   
2. Church/State: the Court continues its random walk thru "Separation of Church & State" ($50 to anyone who can find that phrase in the Constitution) by telling us ... well, nobody seems sure of what they told us. Only Breyer seems to know, since he is the only one to agree with both opinions. (Van Orden v. Perry & McCreary v. ACLU);
3. Federalism: more confused, contradictory and silly opinions (Gonzales v. Raich & Granholm v. Heald) - yes, States have rights (wine selling/Granholm), no they don't (medical pot/Raich); and,
   
4. Capital Punishment - the Court discovers 216 years after the Constitution was ratified, that a crime committed while a minor cannot be punished by death. One problem - in 1989 the Court decided exactly the opposite. (Roper v. Simmons) Nothing like a Living Constitution!
   

This Court cannot be described as "returning to the center" because it was never to the Right. It has 4 liberals and 3 conservatives. The balance of power is held by 2 confused, liberal-trending Justices (O'Connor & Kennedy) who sway in the wind. It is a Court without direction and without a legal compass because of the two pivotal Justices.

It is sobering to realize that even if two Strict Constructionists are appointed the replace O'Conner & Rehnquist (if he retires), then all that will be achieved is making it a 4/4/1 Court; instead of the current 4/3/2. The confusion and misdirection will continue.

The NYT has once again brought us a misleading editorial, this time it is not from Bob Herbert. Lucian Truscott IV's "The Not-So-Long Gray Line" on June 28, 2005 is the culprit this time around. The central thesis is that our current Army officer corps is facing a disastrous loss of experienced officers because the Army is lying to its officers. The attempt is made to compare the war in Iraq to Vietnam. The column is short on statistics or supporting documentation, except:

1. The LA Times reports that there is "an undercurrent of discontent within the Army's young officer corps"; and,
2. "The annual resignation rate of Army Lt. and Capt. rose to 9% last year, the highest since before the the Sept. 11th attacks."

We can discount # 1 immediately, because it lacks any specificity or support. It is a "news analysis" by a very liberal paper.

#2 is actually a firm statistic. The problem is that I can't find it anywhere else. A search under google for "annual resignation rate" turns up only a few links, all of which originated out of this NYT Editorial. Also, I could find no supporting evidence to for Truscott's statistics about officer retention in 1945 and 1969.

The facts are:

1. According to the Sergeant Major of the Army in June 2005:
a. The Army's 3rd Infantry Division (now in Iraq for the 2nd time) had a 200% retention rate;
b. The Army National Guard retention rate is higher than it has ever been.
2. "Retention has overachieved" according to Bill Carr, acting undersecretary of Defense for military personnel policy on June 10, 2005;
3. At Fort Bragg, NC (where the President just gave his speech) and home to the Army's elite Airborne and Special Operations forces (those who have seen the most combat) retention was at 109% for career troops as of July 1, 2005;
4. Army-wide, General Peter Schoomaker states that retention is at 104% as of July 2, 2005;
5. Retention in 2003 was 103.7%; and,
6. ROTC provides 75% of Army Officers, and other programs and West Point supply the remainder.

Therefore, we can conclude the following:

1. Focusing on West Point retention rates misses at least 75% of the issue;
2. There are no hard West Point officer retention rates that I could find; and,
3. The available evidence out there suggests that the Army is exceeding its goals in retaining its officers.

In other words, Truscott's NYT editorial is worthless.
(Thanks to RedState and RCP).

Let's assume that Rehnquist is also going to resign in the near future.

In this case, the President has made it clear that he wants to appoint a Hispanic, and politics probably means that he has to appoint a woman as well. It seems that the President wants to put a Texan on the bench as well, for reasons that escape me (and I'm a Texan).

The President needs to be sure to:
1. energize and reward his conservative base;
2. balance competing ethnic/sex/regional demands; and,
3. ensure passage of his nominees.

His should appoint:

1. Janice Rogers Brown for O'Connor's;
2. promote Scalia to Chief Justice; and,
3. Emilio Garza for Scalia's old post.

Brown fulfills the woman requirement, and is a minority on top of that. Garza is the Hispanic choice, and Texan.

Politically, all three are acceptable to conservatives. Scalia is not required, but Senate Minority leader Reid has already indicated that he is acceptable (a statement I'm sure that he regrets).

Brown is an originalist in the Clarence Thomas mold. Garza seems very conservative, although older than I would like. We all know Scalia's impeccable originalist credentials.

Brown has the added advantage of just being approved by the Senate 56-43, under the "Group of 14" fillibuster compromise.

This will entail a brutal fight in the Senate, and will result in probably all 3 being fillibustered. So, ultimately, we are going to need at least 2 of the 7 Republicans from the "Group of 14" to cross over and end the fillibuster.

What is a Conservative to think of John McMain?

The presumptive 2008 Republican Presidential nominee alternately enrages and inspires Conservatives. What explains this, and how can we predict what kind of President he might be.

Understanding McCain
The key to understanding McCain is Teddy Roosevelt. TR is McCain's idol and role model (see Worth Fighting For by McCain or his chapter on TR in Presidential Leadership). The similarities are startling. They both:

1. were war heroes;
   
2. buck the Republican Party line regularly;
3. appeal to independants and Democrats, yet are fundamentally conservative;
4. have problems with the Republican base;
   
5. are masters of favorable media coverage; and,
   
6. considered running as Independents (Teddy did, McCain still might).
   

Teddy did not have to get nominated, instead he was appointed Vice President and then President McKinley was assasinated 6 months after TR was sworn in. It would have been difficult for TR to have made it through the Republican primary process becuase of opposition from the central base of the Republican Party. That base was partly composed of big business, protectionists and corrupt Political Machines.

Ultimately TR became a highly successful President and won re-election by the largest landslide in American history (at that time). He pulled the Republican Party from the 1870s Machine politics into the 20th Century.

McCain seeks to do exactly the same. He sees himself as an opponent of big business and pork-barrell politics. McCain certainly thinks of himself as the most Reaganite, and TR-like, politician around. He may be able to broaden the Republican base the way Reagan did.

McCain is most valuable because the MSM treats him positively, or at least NOT negatively (like they do any other conservative). Normally the only route for a Republican to gain this kind of MSM support is to abandon all conservative principles. McCain has not done this. Remember that the Editor of Newsweek recently estimated that MSM bias is worth 15 points in an election and $2 billion/year for the Dems. Not surprisingly, McCain does about 15 points better than any other Republican candidate in polling.

Lastly, McCain would be 72 upon being sworn in to office in January 2009. He would most likely have to choose a solid conservative as his VP in order to ensure conservative support. He might only serve 1 term. Even with 2, a strong conservative VP would be ready to step into the Presidency right after he left office (as Taft did in 1908).

Two Key Questions Answered
1. Would McCain remain loyal to conservative values? What you see now is what you are going to get: a robust foreign policy, anti-wasteful spending attitude, pro-life, and something of a gadfly on a number of other issues.
3. Can McCain win. The fear is that Ask yourself: how many conservatives are going to support Hillary over McCain, or even sit out the election? None. McCain will win.

Conclusion
Republicans have much more to gain than to lose from a McCain presidency.

Testing.