The prospect of filibuster would have to be raised, although it could not be undertaken without defining a reason not now presented by the evidence.

Reed, Miers' complete lack of relevant experience is reason enough to oppose her nomination--especially in light of the recent Mike Brown fiasco. The public will buy this reason if expressed forcefully and simply. It's just plain common sense not to hire an inexperienced person for a job that is as powerful and important as justice of the supreme court and that has life tenure! (Say that with a folksy, vaguely southern accent and everyone will agree.)

If the democrats can't agree to get such a simple message out, then they are indeed hopeless.

If it should happen that Republicans rebel against Miers, then the next appointment will  be vindictive, IMHO.  But vindictive against who?  I'm thinking vindictive against Democrats.

I agree Jane that if the far right blocks Miers his next pick will be vindictive.  I am not sure I agree that if the far right republicans block her nomination it will be vindictive towrds the dems though.  Imo Bush can't stand disloyalty and won't reward it by putting up a Scalia/Thomas type of judge as "punishment".  I think it sends the wrong message imho...

I have my doubts that the republicans will defeat her.  It would tear apart their caucus.  The republican leaders in Congress will make sure she gets approved giving some on the far right the wiggle room to cast protest votes against her if they want to placate their constituents...

Reed,

I think you have your Nixon nominees backward.  Haynesworth was first and while he was undistinguished it waas tolerable. When is comments led the Democrats to defeat him Nixon, assuming that the Democrats would neve oppose a second nominee tried to ram Carswell down their throat.  I believe he gave rise to Roman Hruska's infamous comment that "mediocrity deserved representation on the Supreme Court too."  Carswell was so terrible that the Democrats did the unthinkable and defeated him too.  

Is that any doubt that if Bush's person friend is turned down that Bush won't go with another nominee that will be a lot less acceptable?  Given that, Democrats better think about what they are prepared to do be they act.

Bush could probably find half a dozen judges supporting his views on executive authority.  He could probably even get a handful through the Senate.  The problem is his base!  He needs to maintain the illusion that Roe v. Wade will be overturned by his candidate to keep the wingnuts happy...while avoiding nominees who have openly condemned Roe, since that would trigger a moderate Republican backlash or a fillibuster.  It doesn't leave him much room.

Miers will probably get through, but if she doesn't, it will be interesting to see how Rove reacts.  Do they turn on Miers and toss her aside like Kirkuk, blaiming her for her own shortcomings?  Do they compromise and choose a pro-choice judge who supports their executive authority position...and lose the base?  Or do they go for broke with an openly anti-abortion judge and dare Republicans to fight?  The problem with the latter scenario is that the White House may be so weak at that point that a final, stinging defeat by the Senate could truly end Bushism as we know it.  Iraq, the economy, the ticking clock of his own lame duck status aren't going anywhere.  The longer this thing draws out, the fewer options Karl has...

If Miers goes down, Karl has no easy answers.  I'd be on the look out for some serious "wag the dog" action at that point.  Would anyone be surprised if we found out that Iran was funding Iraqi insurgents right about then...?  

Purple Stare is on the money here. Forget the politics of this. Forget ideology for the moment. There is nothing--ABSOLUTELY NOTHING--in Miers' resume that remotely qualifies her for nomination to the Supreme Court other than a sycophantic relationship to the mediocrity currently occupying the White House. Simple good government--remember that?--demands rejection of this nomination, whether or not it would make subsequent opposition to a bona fide wingnut nomination more or less difficult.

But if Miers is withdrawn, or withdraws, will the next nominee be better or worse (from the Democratic point of view)?  Can you really imagine better?

Two things . . .

First, we don't know how "bad" or "good" for democratic issues Miers is. Who knows? She could make Priscilla Owens look like a communist for all we know--or, as the right fears, she might turn out to make Souter look like Rush Limbaugh.

Second, the democrats have to stop making up their minds based on what may or may not hurt or help them or what the public may or may not like or what the republicans may or may not do. Just tell us what you really think of Miers--don't keep making "strategic" calculations . . . they never work when democrats make them anyway.

As I've said elsewhere, the Democrats should not oppose Miers in knee-jerk fashion. They should do two things first:

Demand that all documentation of her work for Bush as President be released. Since her service to Bush is her only relevant experience, it must be made available to the Senate (regardless of attorney-client or executive privilege). Otherwise there's absolutely no way for the Senate to evaluate her or responsibly confirm her.

Second, ask lots of questions and insist on full answers. Since she has no record at all (far less than Roberts had) she must cooperate and express her viewpoints. If she doesn't do that, how can we tell if she's capable of doing the job?

Who knows--if she answers questions we may find her an attractive candidate. Then we should confirm. But if she fails to provide information, I think the Senators (both parties) have a duty to reject her as an unkown. We can't take the risk of an unqualified appointment to a lifetime office of such power.

Just to clarify my view on this: given the evidence we have now (absolutely none) of Miers qualifications or lack of qualifications for the job, she must be voted down. However, we should give her a fair chance to present evidence that she is indeed qualified. If she provides that evidence and turns out qualified (and reasonable) then we should vote for her if we like her legal philosophy or vote against her if we don't. If she turns out to be unqualified or way off base in her legal thinking, we should vote against her. And if she fails to provide evidence and leaves us where we are today (with no evidence), we have to vote against her.

Simple and honest. No friggin' political calculations, please.

Not only did you get Haynesworth and Carswell reversed, but when those nominations failed Nixon appointed Blackmun, not Powell.

Powell and Rehnquist were appointed in the fall 0f 1971 to replace the great justices Hugo Black and John Harlan.

Nixon purposely chose a Northerner in the wake of the Carswell failure in order to make the point that the Democrats would never confirm a Southerner.  It was part of the Southern Strategy.  Which worked, in case anyone hasn't noticed.

Opposing her as unqualified or not distinguished enough is a no win for Dems. If we oppose her based just on qualifications and not ideology, the next nominee will have those objective qualifications and experience, but will be a true wingnut (Owens or Brown). What we should do is oppose her for both reasons. By taking the position that her only qualification is her ideology, and showing why that is unacceptable, we prepare for the next nominee by insisting that someone be both objectively qualified and within the ideological mainstream. If Bush can claim she is qualified but the Senate makes the case that she is not, and we also make the case that her only qualifications are that her ideology is compatible with his (which he already admits), then we can insist that a future nominee be both objectively qualified and ideologically mainstream. To oppose her on either/or sets us up for a worse nominee in the future.

irishkg - Find me a judge who would keep both the moderate Senate Republicans and the conservative base happy on the abortion question.  I agree that executive power is the hidden goal, but abortion is the bottle neck.  

As for "threading the needle," well, we'll see.   I would argue that Rove picking another stealth candidate was pretty predictable.  It was going to be Miers...or someone similarly unknown.  We'll see how it works out for them in the long run.

It's the Tom Hagen problem. Sure we don't like President Corleone, and we fully realize that the real purpose of the nomination is personally to protect the President while in - and for a substantial amount of time after leaving - office.

 But once the Shrubfather is out of office, would Justice Hagen - or Miers, as the case would actually be - prove to be another moderate Republican who would actually interpret the law to cover a broadly centrist, if somewhat right of center, point of view? There are some indications that this may well be the case, and the revised reactions of the likes of James Dobson seem to point to a confused and incomplete assessment of her nomination by the fundie wing of the GOP.

Bush could probably find half a dozen judges supporting his views on executive authority.

Probably--but funny none of them could possibly be a so-called "strict constructionist," since the text of the constitution limits executive power to the following:

The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.

He shall from time to time give to the Congress Information of the State of the Union, and recommend to their Consideration such Measures as he shall judge necessary and expedient; he may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper; he shall receive Ambassadors and other public Ministers; he shall take Care that the Laws be faithfully executed, and shall Commission all the Officers of the United States.

The reason Bush wants us to be at war all the time is because arguably the most significant power he has is as commander in chief (most of the other powers are shared with congress or require him simply to execute faithfully the laws passed by congress).* The role of the commander in chief is unfortunately (but conveniently for Bush) not clearly defined by the constitution. By expanding the "definition" of commander in chief beyond anything the founders possibly could have imagined, Bush can argue for apparently infinite executive power.

One of the interesting questions I have is how a strict constructionist can claim executive privilege--the constitution never even mentions that concept?  

*Note. The commander in chief powers also seem limited, since the following war powers clearly belong to Congress, not to the President:

Clause 10: To define and punish Piracies and Felonies committed on the high Seas, and Offences against the Law of Nations;

Clause 11: To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Clause 12: To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

Clause 13: To provide and maintain a Navy;

Clause 14: To make Rules for the Government and Regulation of the land and naval Forces;

Clause 15: To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;

Clause 16: To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

I really think I will not rely on personal recollection as much in the future! thanks for the correction.

Having watched Bolton nomination, Senators waded part way into the Executive vs. Legislative split of power.

The Bolton fight was an interesting one.  The Bidens of the world were all ready to roll over and play dead, and were surprised when Republicans started opposing Bolton.  I really think the success of the anti-Bolton campaign is a tribute to the behind-the-scenes fight against him among Republicans (Colin Powell in particular, probably as proxy for the Scowcroft wing of the GOP).

Democrats really have made themselves pretty irrelevant.  The Senate Dem leadership has already endorsed Miers, on what basis do they now turn around and oppose her?  They just got rolled.  Again. 

Another thought--I suspect the democrats would not challenge the notion of executive privilege because they want to reserve that privilege for themselves if they ever win the presidency again.

This points to a major difference between the republicans and democrats: Regardless of what they tell you now, the republicans at heart actually want to preserve the option to filibuster a judicial nomination (if it's ever a liberal president doing the nominating and they're the minority in the Senate). But they'll blow up that filibuster option now to kill the democrats' power and then simply reinstate it later if they ever need it for themselves. Remember how much they loved term limits until they got into power themselves. Now none of 'em would argue for term limits.

The republicans really don't care about principle in these kinds of fights--it's all about power. They know the American people have short memories and the democrats can't figure out a counter-strategy to this tactic. I'm not sure the democrats are more principled (if they were I'd forgive them)--but I fear it's not principle that holds the dems back, but plain old timidity and dullness.