Outside Counsel

It occurred to me last night that if Harriet Miers goes down in flames the natural impulse of the Bush White House will be to come back with a more credentialed right wing nut. Of course, these things don't really have a fixed pattern: Bork to Ginsburg ("Party on, dude)led to Anthony Kennedy; Nixon's nomination of Clement Haynsworth led to G. Harrold Carswell ("Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to representation, aren't they?" - Senator Roman Hruska) and ultimately Justice Blackmun. Birch Bayh led the fight against Haynsworth and Carswell-- the staffers that I knew that had worked with him at the time were very proud of this accomplishment-- the first time a Supreme Court nominee had been defeated in nearly seventy years. They recalled that the second fight was even harder than the first. There were several reasons for this: the first fight had been tough, and a lot of people didn't have the taste for it any more; and there was some sentiment that the point had been made, and that the President should now be entitled to his choice. The sheep we have in the Senate these days are even more likely to roll right over the second time-- honestly, can't you just hear Lieberman now?

It seems to me that they may be looking in the wrong places for potential justices. There was an article about the Michigan Supreme Court (they call their highest court the "Supreme Court"-- isn't that adorable?), and I thought, you know who'd be good? The Chief Judge of our own Court of Appeals, the Hon. Judith Kaye, would be a terrific pick. I have no idea if it is a job she is seriously interested in, but I don't expect that too many people turn down the offer. She's a solid judge, with an excellent track record. Chuck Schumer wouldn't make a peep. I have no idea what her thinking is on Roe v. Wade, but I'm tired of Roe v. Wade being the sole defining characteristic of judicial nominations-- there are larger questions, and a correct answer on Roe (poorly reasoned, now settled law) is just a part of the overall picture.