Very high, in my view.  I'd call it 8-1 in favor.

Why?  Remember how many times John Bolton was dead in the water?  Sure, it was a recess appointment -- Miers may not appreciate similar treatment, but I'm sure she'll take it.   That would fit your TPM main question of "ever sitting on the Court".

Once she's on the court, a Republican Senate would easily ratify her for a lifetime appointment (unless she votes with Souter too many times).

 If Dobson's already on the team, everyone else will follow.  Democrats, starting with Harry Reid will hope for the best.

I think I have to echo 8:1 in favor. When it comes down to it, the President's party will do what the President wants, even if they kick, scream and give him trouble for it. If they don't and if I'm wildly wrong, then the party members that have to get themselves elected again someday have turned on Bush to a surprising extent.

Hmm... I did forget about the recess appointment.  But if she is outright voted down, or withdraws, then that can't happen.  So I will stick with my estimate.

sPh 

Even odds. Maybe, just maybe ever so slightly in favor. A more interesting question is how many senators vote their conscience on her confirmation?

Right now, conservatives have two reasons to be unhappy with her: lack of proof of her being a staunch conservative and perception that this is a crony pick. The Dems really have just one reason - it's a crony (read: not qualified) pick. I suspect we are going to see a lot of very interesting politics around her confirmation. Conservative Republicans have a choice of either go with their gut instincts or with their president. Democrats must decide whether they should derail this nomination on the basis of lack of qualification, or see it through on the basis of cutting their losses. Less conservative Republicans must determine where the winds blow.

Overall, this might be an easy one to disobey Bush, because under some fairly realistic scenarios, a large majority can vote against her on the confirmation (there are also scenarios where a large majority votes for her, though as well). So if enough Republicans think they need the "street cred" for standing up for principles, or whatever else they imagine themselves standing up for, this vote is an easy one to sabotage. Bush will be back to square one with a clear message from the Republicans - no more stealth nominees. The latter is good for the Dems because (a) by this time we are well into 2006, and everyone up for election is looking into November, and (b) if the second pick has a "confirmed track of strict interpretation of the original intent", the Dems might have just enough "powder" for a filibuster. I'd say, they could only benefit from a serious run-in the the wingnuts right in the thick of the election campaign.

I wager 20 quatloos on the female.

I'll say 2:1 against, but the main reason I am posting is to show off. Here's what I wrote less than four hours after the nomination:

there have to be some real questions about what Republicans will do. Remember, the 2008 presidential campaign has already begun. If you're a potential candidate like Senator Brownback, and you see this anger in the base, it is a golden opportunity to make some allies. And if Brownback turns on Miers, what are George Allen and Rick Santorum supposed to do? You could see the beginnings of significant bipartisan opposition to Miers, in which case the nomination would have to be withdrawn, even if it's not clear that the opposition would reach the 40-vote level.

Yes, if there are more Brownbacks, then it may steamroll and she may have to withdraw.  But I imagine within a few days, and some Rove hand-holding, he'll back down and "wait to hear from her before deciding" or similar. 

There will be enough red meat in the hearings for right-to-lifers to cling to.

But indeed, as another poster has indicated -- Plamegate may take her down.  I didn't consider that. 

C'MON Jon START A BOOK.

 LINK UP WITH PAYPAL.  THE SUCKER BETS ARE ALL OVER THE PLACE.  YOU COULD GET TEN INTERNS.  MAYBE SOROS WOULD PUT UP A POT.

After careful analysis and extensive empirical observation, I have determined that the probability of Miers being confirmed is exactly:

0.743560347098016351341959081353134341087134

I think the odds of confirmation are more like e than pi....

People are relating this to the Plame affair as in, indictments might bring down the Meiers nomination.  But is it really crazy to consider the possibility that BushCo nominated her *because* they expect indictments, and they want to make sure one of "their people" is on the SC when the s**t hits the fan?

We have an unfolding strategic catastrophe in Iraq, plummeting poll numbers, the prospect of criminal indictments (for treason?!) of members of the admin, a winter of energy price meltdown looming, and all the admin wants to talk about is declaring martial law in the event of an avian flu pandemic.  I have this growing sense that, no matter what we've seen already, things just may get distinctly more weird, in a very serious way.

Remember, these guys pride themselves on rewriting reality.... 

Also, how could he make a recess appointment that tacitly is a life-time appointment, when the relevent clause states that it is in force temporarily.  

CVille, you raise an interesting point here, but I'm not sure the text of the constitution would even exclude establishing a term for the offices of judges, though the founders clearly intended judgeships to be permanent.

Here's the text of the constitution (below, if you're interested, is Hamilton's analysis from Federalist 79):

The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office.

Federalist 79:

NEXT to permanency in office, nothing can contribute more to the independence of the judges than a fixed provision for their support. The remark made in relation to the President is equally applicable here. In the general course of human nature, a power over a man's subsistence amounts to a power over his will. And we can never hope to see realized in practice, the complete separation of the judicial from the legislative power, in any system which leaves the former dependent for pecuniary resources on the occasional grants of the latter. The enlightened friends to good government in every State, have seen cause to lament the want of precise and explicit precautions in the State constitutions on this head. Some of these indeed have declared that permanent1 salaries should be established for the judges; but the experiment has in some instances shown that such expressions are not sufficiently definite to preclude legislative evasions. Something still more positive and unequivocal has been evinced to be requisite. The plan of the convention accordingly has provided that the judges of the United States "shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."

This, all circumstances considered, is the most eligible provision that could have been devised. It will readily be understood that the fluctuations in the value of money and in the state of society rendered a fixed rate of compensation in the Constitution inadmissible. What might be extravagant to-day, might in half a century become penurious and inadequate. It was therefore necessary to leave it to the discretion of the legislature to vary its provisions in conformity to the variations in circumstances, yet under such restrictions as to put it out of the power of that body to change the condition of the individual for the worse. A man may then be sure of the ground upon which he stands, and can never be deterred from his duty by the apprehension of being placed in a less eligible situation. The clause which has been quoted combines both advantages. The salaries of judicial officers may from time to time be altered, as occasion shall require, yet so as never to lessen the allowance with which any particular judge comes into office, in respect to him. It will be observed that a difference has been made by the convention between the compensation of the President and of the judges, That of the former can neither be increased nor diminished; that of the latter can only not be diminished. This probably arose from the difference in the duration of the respective offices. As the President is to be elected for no more than four years, it can rarely happen that an adequate salary, fixed at the commencement of that period, will not continue to be such to its end. But with regard to the judges, who, if they behave properly, will be secured in their places for life, it may well happen, especially in the early stages of the government, that a stipend, which would be very sufficient at their first appointment, would become too small in the progress of their service.

This provision for the support of the judges bears every mark of prudence and efficacy; and it may be safely affirmed that, together with the permanent tenure of their offices, it affords a better prospect of their independence than is discoverable in the constitutions of any of the States in regard to their own judges.

The precautions for their responsibility are comprised in the article respecting impeachments. They are liable to be impeached for malconduct by the House of Representatives, and tried by the Senate; and, if convicted, may be dismissed from office, and disqualified for holding any other. This is the only provision on the point which is consistent with the necessary independence of the judicial character, and is the only one which we find in our own Constitution in respect to our own judges.

The want of a provision for removing the judges on account of inability has been a subject of complaint. But all considerate men will be sensible that such a provision would either not be practiced upon or would be more liable to abuse than calculated to answer any good purpose. The mensuration of the faculties of the mind has, I believe, no place in the catalogue of known arts. An attempt to fix the boundary between the regions of ability and inability, would much oftener give scope to personal and party attachments and enmities than advance the interests of justice or the public good. The result, except in the case of insanity, must for the most part be arbitrary; and insanity, without any formal or express provision, may be safely pronounced to be a virtual disqualification.

The constitution of New York, to avoid investigations that must forever be vague and dangerous, has taken a particular age as the criterion of inability. No man can be a judge beyond sixty. I believe there are few at present who do not disapprove of this provision. There is no station, in relation to which it is less proper than to that of a judge. The deliberating and comparing faculties generally preserve their strength much beyond that period in men who survive it; and when, in addition to this circumstance, we consider how few there are who outlive the season of intellectual vigor, and how improbable it is that any considerable portion of the bench, whether more or less numerous, should be in such a situation at the same time, we shall be ready to conclude that limitations of this sort have little to recommend them. In a republic, where fortunes are not affluent, and pensions not expedient, the dismission of men from stations in which they have served their country long and usefully, on which they depend for subsistence, and from which it will be too late to resort to any other occupation for a livelihood, ought to have some better apology to humanity than is to be found in the imaginary danger of a superannuated bench.

And I wager 50 quatloos against the female, with a small scandal to propel it.

ds 

CVille . . .

My point is that the text I quoted is all the constitution says about judical terms. While the constitution does not specifically say that terms are permanent, the quote from Hamilton was included as an example to show that the founder's intent indeed was for appointments to be permanent (there wasn't any significant dispute about this among the founders, I don't think). (I also think some of the other points Hamilton makes are interesting, as well, given the recent debate about when judges might be removed.)

I think it is very hard from the text of the constitution to argue that the president can't make recess appointments to the supreme court. In fact, the issue has come up several times before, and in a Congressional Report, the issue was addressed very explicitly in 2001. Basically the conclusion was that the President could legally make recess appointments for judges, but to do so for a supreme court justice would be very poor judgment for political reasons.

As far as there not really being a vacancy when O'Connor is willing to serve until a replacement can be found--that's an interesting idea, but I can't imagine it flying far. First, if it ever did become an issue, I'd expect O'Connor to leave just to make the issue moot. Second, if you accept this premise, what would prevent O'Connor from changing her mind and deciding to stay on the court if she doesn't like the new appointee, regardless of whether that appointee is appointed by the President during a Senate recess or confirmed by the Senate in the normal way? It seems to me that we need to accept an expressed intent to resign as soon as a replacement is found as the equivalent of a vacancy or an absurd situation arises where the resigning justice can effectively veto an appointment simply by changing his or her mind and refusing to actually leave the job.

Right now, 50-50, given 1) Dems aren't very happy, (why should we be?) Reid's "recommendation" notwithstanding which really wasn't a recommendation but rather a statement that given what he knew she would not be objectionable - and may have been an attempt a sandbagging the pres and 2) wingnuttery is up in arms, and their arguments, quite frankly, make sense for once.

Now, add to this:  How will she perform in the hearings?  Will her most salient features - her mediocrity, and her complete lack of experience in constitutional law, trip her up? Very possibly. Some Repubs need to be reelected in '06 and may just want to run away from an obvious hack being appointed to the highest court in land. Plus, are there indictments coming?

If the Bush WH gets hit with indictments in a serious way, he'll be weakened, Dems, if they have a brain or a spine (here's the rub) can get tougher and repubs may just want to back off from Bushco even more and here's their chance.  Further, if there are indictments the question will come up of what was Miers' involvement/knowledge in any of this, Could be damaging.

So, now, 50-50. If she does poorly or stumbles in the hearings down to 30-70 against her.  If there are indictments down to 20-80 to 40-60 against her, depending on her involvement, if any. (and how could she not be involved?)

If she does poorly and there are indictments, she's toast.

CVille Dem,

True, she is WH Counsel, but after the grand jury was impaneled, both Bush and Cheney hired outside counsel for the matter, as Bill Clinton found out about WH Counsel not being priviledged.  I doubt that she would rat on Georgie, as she seems Rosemary Woods-ish when it comes to him.  But Rove, Libby, Cheney- she's not their counsel and she was in the thick of all those meetings, preparing memo's and briefings.  She could place them all in time, which might conflict with their stories in front of the Grand Jury. 

What is the authority for there being 9 justices on the Supreme Court?  I'd always heard if there was a 4-4 split the circuit court ruling would stand. 

57 comments, some quite long, and none of you know the anwer? It's here on Tradesports. The basic contract for confirmation is currently at a surprising 73.9, which means bettors think she has that percentage chance. (There isn't much of a hedging element here as in elections.) What will be fun is to watch the evolution of the odds.

I disagree. If Rowe is overturned, there will then be the fight for a Federal ban on abortions, as well as state bans.  The Bush Party loyalists will have years to be upset on this.