Brendan Nyhan

Before the Alito slugfest kicks into high gear, it’s worth taking a step back and considering how the failure of the Miers nomination will shape the future of the Court.

Two points stand out. First, as William J. Stuntz argued on The New Republic Online, “Harriet Miers is to the Supreme Court what Dan Quayle was to the vice presidency: a sign of rising standards.” Samuel Alito is an experienced judge and prosecutor, and it’s hard to imagine any president nominating another unqualified crony in the future.

Second, early opposition to the nominee may be key, particularly now that new media makes it possible for opposition to coalesce quickly, as John Fund argues today:

As President Bush prepares to make a new appointment to the Supreme Court, the lessons of the failed Miers nomination are still being absorbed.

One that deserves study is how a lightning-fast news cycle, a flat-footed defense and the growth of new media such as talk radio and blogs sank Ms. Miers’s chances even before the megabuck special-interest groups could unload their first TV ad. Ms. Miers herself has told friends that she was astonished at how the Internet became a conveyor belt for skeptical mainstream media reports on her in addition to helping drive the debate.

The rapidity with which Supreme Court nominations can become full-scale political contests would astonish previous generations. While one out of five previous nominees to the highest court failed to be confirmed, the battles used to be far more gentle. Nominees didn’t even show up at confirmation hearings until 1925.

I’m thinking about studying court nominations as a classic kind of positive feedback coordination game in which opposition must reach critical mass to overcome the norm of senatorial deference to executive branch nominees. In the past, nominees have (I think) generally been defeated at the committee stage after a long process of written submissions and oral testimony. Now, however, it’s possible to mount a strong defense very early in the process.

We have to be careful, though, not to exaggerate the importance of the Internet and other new media. The fundamentals remain key. Miers needed enough votes to pass the Senate, and she didn’t have them. In addition, President Bush has an approval rating in the low 40s and needs conservative support after the indictment of Scooter Libby. So it makes sense that she was pulled.

Bush runs back to his base:

[Samuel Alito] has been nicknamed “Scalito” for his ideological similarity to United States Supreme Court Associate Justice Antonin Scalia.

Will this cause a nuclear option showdown? That’s the biggest question here. The end of the filibuster could completely change the Senate.

Can you blame the public for not trusting the media when you read things like this?

Because the case involves the intersection of politics and the press, the day sometimes had a hall-of-mirrors element. At one point, Mr. Cheney’s onetime press secretary, Pete Williams of NBC News, asked Mr. Fitzgerald how the prosecutor could take the word of “three reporters” (including his current bureau chief and boss, Tim Russert) “versus the vice president’s chief of staff,” with whom Mr. Williams served in the Pentagon when Mr. Cheney was secretary of defense in the first Bush administration.

Yikes:

“When I find a time when I disagree with Dick Cheney, I say to myself, ‘Why am I wrong?’” Mr. Libby said in an interview in 2001.

Let’s just say that Libby doesn’t seem like a man who goes out on a limb without his boss’s approval.

The editors of National Review are, surprisingly, speaking truth to power rather than recycling GOP talking points:

Please spare us the excuses warmed over from Democratic talking points in the 1990s: the prosecutor is out-of-control, there was no underlying crime, etc., etc. It is the responsibility of anyone, especially a public official, to tell the truth to FBI agents and grand juries. If Libby didn’t, he should face the consequences.

So, too, is Andy McCarthy on NR’s blog The Corner:

Some observations from the wrenching experience of watching TV last night and witnessing people I admire — people who were on the right side of the Clinton wars and have heretofore been strong rule-of-law conservatives — engage in what is a startling defense of the conduct alleged against Scooter Libby.

The claim that Libby is being smeared with the allegation that he leaked classified information even though he hasn’t been charged with it, and that because he has not been charged he has no way to get his good name back from the said smearing, is specious.

This is not a case where a person has not been charged with any crimes at all, where the government doesn’t have the nerve to put its money where its mouth is, or where the government itself is leaking out damaging innuendo. The government has not filed a bare-bones indictment, as it could legally have done. Instead, the special prosecutor has given Libby elaborate notice, extensively describing his alleged conduct. We are not at a loss here to make our own judgments about what the conduct means if it is proved.

Update 10/30: Brad DeLong points out that the Wall Street Journal has taken a different approach:

Unless Mr. Fitzgerald can prove beyond a reasonable doubt that Mr. Libby was lying, and doing so for some nefarious purpose, this indictment looks like a case of criminalizing politics.

As DeLong says:

Libby’s story is contradicted not just by a few journalists, but by his own notes and more than a half-dozen senior administration officials as well.

Hence the Wall Street Journal’s declaration that if the obstruction of justice is successful–if it keeps the prosecutor from being able to prove the underlying offense beyond a reasonable doubt–it should not be prosecuted.

Oh, how things have changed in the last year.

On Wednesday, the New York Times reported that a Bush administration nominee is under fire for demagogic claims that the media is helping Al Qaeda:

The senior Democrat on the Senate Armed Services Committee vowed Tuesday to defeat President Bush’s choice for chief Pentagon spokesman, citing an op-ed article the nominee wrote in April accusing American television networks of aiding Al Qaeda and other terrorist organizations.

The comments by the senator, Carl Levin of Michigan, during and after a committee hearing to consider the nomination of J. Dorrance Smith to be assistant secretary of defense for public affairs, cast serious doubt on Mr. Smith’s chances to win approval by the full Senate.

Mr. Smith, a former ABC News producer who has worked as an adviser in both Bush administrations, said in an article in The Wall Street Journal on April 25 that the Arab satellite news channel Al Jazeera operated on behalf of terrorists and that American networks aided them by televising Al Jazeera’s videotape.

What’s amazing, though, is that Republicans aren’t coming to Smith’s defense:

Even some Senate Republican aides said Mr. Smith’s nomination appeared in jeopardy. After the hearing, the committee chairman, Senator John W. Warner, Republican of Virginia, issued an uncharacteristically tepid statement saying only that the committee “will continue to process this nomination.” A White House spokesman, Frederick Jones, declined to comment except to say that the confirmation process should be allowed to run its course.

All of a sudden, 9/11 demagoguery is no longer ok! It’s amazing what a low 40s approval rating will do.

The first three paragraphs of Daniel Henninger’s Wall Street Journal column today are mesmerizing in their incoherence:

Here’s my guess why the President pulled Harriet. It was past midnight. In the wee a.m. hours Wednesday the President was up past his bedtime. The First Lady was asleep. He had just watched the Astros go down three-zip to the White Sox, and he says to himself: “Bad karma.” And he pulled her.

That’s all the explanation I need. George Bush’s opponents, on the left and on the right, have wanted to shove his presidency into a hole for a long time. Their chance was at hand. He just took it away from them. No matter which of two briefcases Patrick Fitzgerald brings to work today, it’s time for this presidency to go back to work.

Last week here we were plotting the Bush revival. For the record, if he signs on to an across-the-board spending sequester, I will do dinner for 62,040,606, the number that popularly voted for fiscal rectitude in 2004. More important than that, however, was the distinction embedded in that advice-to-the-Rovelorn column: “A Supreme Court nomination, however important, is a political obligation. Iraq is a moral obligation.” With 2,000 U.S. dead in Iraq, that idea holds. Iraq transcends everything. This is the 9/11 presidency.

Apropos of nothing, Henninger makes up a story about why Bush pulled Miers that comforts him (shades of the Bush personality cult), asserts that Bush voters in 2004 “voted for fiscal rectitude,” and claims that Bush’s “9/11 presidency” is the reason we should stay the course in Iraq. Huh?

Here’s a devastating little Associated Press summary of the political situation faced by the President:

Bush, beset by poor poll ratings, an unpopular war in Iraq, high energy prices and the possibility of indictments of White House officials, offered no hint about his thinking on a new nominee. He pledged to make an appointment in a “timely manner.”

Other than that, things are going great!

First Jeff Sessions, now Harriet Miers:

President Bush on Thursday accepted the withdrawal of Supreme Court nominee Harriet Miers, according to a statement from the White House.

In the statement, Miers said her nomination presented a “burden for the White House.” Miers, the White House counsel, was nominated earlier this month by President Bush to replace retiring Justice Sandra Day O’Connor on the high court.

Who’s next — Jeb Bush? And what’s up with the timing of this announcement? Maybe they want to drown out the forthcoming indictments, but it seems like we’ll see the opposite effect – it will magnify the (correct) perception of an administration in disarray.

Writing on The New Republic blog The Plank, Jason Zengerle slams Jonah Golberg’s new book:

I’d been thinking about doing a parody of conservatives’ race to the bottom when it comes to turning out hysterical books on Hillary Clinton, but I see that some prankster has beaten me to it. Check out this brilliant parody. Getting Mussolini and Hillary into the same phrase–genius! And I love how it traces campaign finance reform’s roots back to the Third Reich–the milk just shot out of my nose! I just hope Jonah Goldberg doesn’t find out about it, lest he sic his lawyers on this comic genius.

But he still doesn’t do justice to the astounding book that Jonah Goldberg is apparently writing — check out the cover:

And here’s the summary featured on Amazon:

Since the rise and fall of the Nazis in the midtwentieth century, fascism has been seen as an extreme right-wing phenomenon. Liberals have kept that assumption alive, hurling accusations of fascism at their conservative opponents. LIBERAL FASCISM offers a startling new perspective on the theories and practices that define fascist politics. Replacing conveniently manufactured myths with surprising and enlightening research, Jonah Goldberg shows that the original fascists were really on the Left and that liberals, from Woodrow Wilson to FDR to Hillary Clinton, have advocated policies and principles remarkably similar to those of Hitler’s National Socialism.

Goldberg draws striking parallels between historic fascism and contemporary liberal doctrines. He argues that “political correctness” on campuses and calls for campaign finance reform echo the Nazis’ suppression of free speech; and that liberals, like their fascist forebears, dismiss the democratic process when it yields results they dislike, insist on the centralization of economic decision-making, and seek to insert the authority of the state in our private lives–from bans on smoking to gun control. Covering such hot issues as morality, anti-Semitism, science versus religion, health care, and cultural values, he boldly illustrates the resemblances between the opinions advanced by Hitler and Mussolini and the current views of the Left.

Impeccably researched and persuasively argued, LIBERAL FASCISM will elicit howls of indignation from the liberal establishment–and rousing cheers from the Right.

In short, it’s a book-length argument that liberals are like Nazis. Apparently Ann Coulter’s Treason was too subtle and erudite for the conservative book market. Random House should be ashamed of itself.

Update 10/27: Paul astutely points out in comments that Goldberg has denounced Nazi analogies in the past. Let it rip, old Jonah!

1/5/01: “Nazism and the Holocaust are hardly joking matters. So let me be very careful in how I talk about this.

“If you honestly think John Ashcroft or elected Republicans in general are Nazis, then you are either a moron of ground-shaking proportions or you are so daft that you shouldn’t be allowed to play with grown-up scissors.”

…”Calling someone a Nazi is as bad as calling them a “nigger” or a “kike” or anything
else you can think of. It’s not cute. It’s not funny. And it’s certainly
not clever. If you’re too stupid to understand that a philosophy that
favors a federally structured republic, with numerous restraints on the
scope and power of government to interfere with individual rights or the
free market, is a lot different from an ethnic-nationalist, atheistic,
and socialist program of genocide and international aggression, you should
use this rule of thumb: If someone isn’t advocating the murder of millions
of people in gas chambers and a global Reich for the White Man you shouldn’t
assume he’s a Nazi and you should know it’s pretty damn evil to call him
one.”

6/19/02: “[T]he use and
abuse of Nazi analogies has been a major peeve of mine for quite some
time

9/4/03: “Suffice
it to say that the Nazis weren’t simply generically bad, they were uniquely
and monumentally evil, not just in their hearts but also in literally
billions of intentional, well-planned, and bureaucratized decisions they
made every day.

“And yet, in polite
and supposedly sophisticated circles in America today it is acceptable
to say George Bush is akin to a Nazi and that America is becoming Nazi-like.
Indeed, in certain corners of the globe to disagree with this assertion
is the more outlandish position than to agree with it.”

…”When you say that anything
George Bush has done is akin to what Hitler did, you make the Holocaust
into nothing more than an example of partisan excess. Tax cuts are not
genocide, as so many Democrats have suggested over the years…

“Darn those
Republicans” does not equal “Darn those Nazis.” The Patriot
Act is not the final solution. The handful of men in Guantanamo may not
all be guilty of terrorism, but it’s more than reasonable to assume they
are. And no matter how you try to contort it, Gitmo is not the same thing
as Auschwitz or Dachau. There are no children there. You don’t get carted
off to Cuba and gassed if you criticize the president or if you are one-quarter
Muslim. And, inversely, there was no reasonable justification for throwing
the Jews and the Gypsies and all the others into the death camps. The
Jews weren’t terrorists or members of a terrorist organization. To say
that the men in Guantanamo — or any of the Muslims being politely
interviewed by appointment — are akin to the Jews of Germany is to
trivialize the experiences of the millions who were slaughtered. Even
if you think Muslims are being unfairly inconvenienced, when you say they
are the Jews of Nazified America you are in essence saying the worst crime
of the Holocaust was to unfairly inconvenience the Jews.

Update 11/1: I emailed Goldberg to ask about the text and he responded that he didn’t write it. He didn’t necessarily disavow it (he claimed not to have read it), but said he will not comment further until he finishes the book. So I will withhold further comment until the book is complete.