190 federal nominations (including 23 judges, secretaries of agriculture and veterans affairs, three members of the Federal Reserve, two members of the Council of Economic Advisers and the surgeon general) are sidelined because Senate Democrats won’t deal with them. In the past, Bush would take advantage of Senate absences to make recess appointments (for instance, his appointment of John Bolton as ambassador to the UN).

Recess appointments are not new — they are provided for in the constitution whenever both houses are in recess (Article II Section 2) and "intrasession" recess (like holiday breaks) appointments have been upheld by federal courts — although a firm number of days has not been established nor has the Supreme Court ever addressed the issue.

President Washington used the recess clause to appoint South Carolina judge John Rutledge as the second Chief Justice of the United States (replacing John Jay) during a congressional recess in 1795. More recently, President Kennedy appointed Thurgood Marshall (the first African-American to serve on the Supreme Court) during a recess because he feared opposition from Southern senators. President Clinton made 140 recess appointments, including making James Hormel the ambassador to Luxembourg, the nation’s first openly gay ambassador.

But Democrats don’t want Bush to take advantage of a Senate recess to make such appointments, so they are implementing a new tactic: pro forma sessions (meaning that although there won’t be an official recess, there also won’t be any formal proceedings):

Sen. Jim Webb (D) of Virginia, the designated presiding officer, called the [otherwise empty] chamber to order. "Under the previous order, the Senate stands in recess until Friday," he said. He banged the gavel, and then he left. It took 22 seconds.

A single Senator, calling an empty chamber into session. Ah, Democrats. Faux politicians holding faux sessions.

This is the first time in history that pro forma sessions have been used to stop recess appointments. In other words, Democrats are implementing a new weapon in their war of obstructionism.

Said Senator Webb:

I’d much rather be doing this than allow the president to skirt the confirmation process in the Senate. This is an exercise in protecting the Constitution and our constitutional process.

Hmmm. As I recall, the constitution calls for the Senate to give "advice and consent", not stonewall for months on end. What constitution does Webb think he’s protecting?

Ankle Biting Pundits analyzed the first two days of the Alito confirmation hearings and has calculated the ratio of each Senator’s words to Judge Alito’s responses. For instance, today Sen. Lindsey Graham (R-SC) grabbed the cameras by droning out 2,243 words while Alito’s responses to her “questions” were comprised of only 287 words, giving a Senator/Alito ratio of 89 to 11 percent. Astounding.

• Bloviating Senators-Statistical Proof Senators In Love With Their Own Voices
• Alito vs. Bloviating Senators, Day 2

Judge Alito showed great sense when he told the Democrat Inquisition that the laws governing other countries has no place in our courtrooms:

“I don’t think it’s appropriate or useful to look to foreign law in interpreting the provisions of our Constitution,” Judge Alito said in response to questions from Senator Tom Coburn, Republican of Oklahoma, in the third day of the judge’s confirmation hearings before the Senate Judiciary Committee.

“I think the Framers would be stunned by the idea that the Bill of Rights is to be interpreted by taking a poll of the countries of the world,” Judge Alito said. “The purpose of the Bill of Rights was to give Americans rights that were recognized practically nowhere else in the world at the time. The Framers did not want Americans to have the rights of people in France or the rights of people in Russia or any of the other countries on the continent of Europe at the time; they wanted them to have the rights of Americans.”

I like this answer.

Professor Eugene Volock asks and answers the question, “What would Samuel Alito’s confirmation mean for First Amendment law?”. Money quote:

What do we see here in Judge Alito? Not an O’Connor, Scalia or Rehnquist; rather, a judge with his own mix of conservatism, libertarianism and egalitarianism, a cautious jurist who seems likely to move the court toward a slightly more claimant-friendly view of free speech and religious freedom–and a slightly more government-friendly view of the Establishment Clause.

Personally, I would rather have seen the president nominate someone that would tear the left apart. A known conservative that is a poster child for the New Republicans. Someone like Judge Janice Rogers Brown. It would have been so entertaining to watch some on the left tiptoe around the fact that she is smart and black and conservative and a woman while others come right out and start throwing out “Oreo” and “Aunt Jemima” slurs.

The damage that the left would have inflicted on itself would have been pleasingly massive.

However, now that we have Alito one thing is clear: Bush learned that pandering to the Democrats has its price: his base. Sure, when we voted for him we knew that he was more moderate than true conservative and that there would be much that we would be unhappy about. But one the subject of SCOTUS he was crystal clear: reject activist judges and appoint constitutionalists.

Miers was an unknown and we deserved better, and so the bickering began. Miers graciously withdrew and the President got another shot. While he didn’t pick who I would have picked, at least he did what he said he would do: appoint a constitutionalist that follows the law. As John Hawkings at RWN put it:

When Bush’s next originalist nominee, the replacement for “swing vote Sandra,” is actually confirmed. You know why that is going to be such a great day? Because that will be when it finally dawns on the Democrats that they’ve been completely and utterly hosed. Little miss flipping coin, Sandra Day O’Connor, will be gone and in her place will be a rock solid originalist who’ll be up there for decades. It’ll be enough to bring a smile to a conservative face and a tear to a Democratic eye…

Orin Kerr writing at the Volokh Conspiracy says that has some acquantance with Judge Alito:

First, Judge Alito is not a Scalia clone, contrary to what some news reports have claimed. …

Second, Judge Alito is one of the most likable people you’ll ever meet. He comes off as modest, quiet, and very thoughtful, but he also has a sharp sense of humor. If picked, I think he will be (and should be) a popular choice in the Senate.

Outside the Beltway has some great bio and historical information.

Writing on the Volokh Conspiracy, David Kopel tries to divine what Alito believes the Second Amendment to mean:

Neither case clearly shows Judges Luttig or Alito to support or oppose the Standard Model of the Second Amendment. However, I believe that both opinions suggest that judges Luttig and Alito are, at the least, not hostile to the Second Amendment. Moreover, a generous reading of the Fourteenth Amendment, and a willingness to take Lopez seriously are in themselves good signs for persons who support judicial enforcement of the right to keep and bear arms.

War on Guns posts an excerpt from the Gun Owners of America that indicates that they support Alito.

Ankle Biting Pundits analyzes an Alito dissent and finds the heart of a true conservative:

If all this is just a bunch of legal mumbo-jumbo to you, keep this in mind – Alito’s theory of federalism, as set forth in his dissent here, is at the crux of conservative legal philosophy – a respect for federalism and the refusal to legislate from the bench to achieve a desired, or politically popular result. And read carefully – it’s not as if Alito is hostile to all federal power (as his detractors will surely claim), given that he claimed here that if Congress made findings that the law affected interstate commerce he may have upheld the law.

Unlike Harriet Miers, there are several other examples – a “paper trail” if you will – of Judge Samuel Alito espousing a conservative legal philosophy that can make us comfortable that Alito will not “grow” on the bench as that term is defined by the MSM – which means “drifting left”.

Patterico’s Pontifications does a careful analysis of Alito’s dissent in Planned Parenthood v. Casey, a case that will be central in the Democrat attack on Alito because he ruled in favor of spousal notification before an abortion. Read it all, but a couple of the money quotes:

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure. …

The bottom line is this: Judge Alito’s Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud.

As Casey will be central in the liberal’s attack strategy, it is important to get the facts. QandO Blog lays it out clearly and simply and throws in a probable search case for good measure. Also, there’s more from Clayton Crammer’s log.

Ideoblog reviews Alito’s cases [HT Volokh] and finds that he is business-friendly and values the free market:

In short, Alito has displayed a marked tendency to enforce contracts as written, specifically including choice of law/forum and arbitration provisions that are intended to mitigate litigation costs. He’s also obviously aware of the problems that can be caused by lax proof standards and open-ended liability.

New World Man analyzes three cases relevant to free speech. Money quote:

While eminent domain, the Commerce Clause and abortion/right to privacy are more in the minds of Court watchers and Senators these days, firm footing on free speech and the rest of the First Amendment is obviously an important trait in the next Associate Justice. Judge Alito appears to be well grounded there.

INDC Journal takes a look at Alito’s dissent in Bray v. Marriott, a race discrimination case:

A reasonable person could disagree with Alito’s position in Bray regarding what the plaintiff must show in order to defeat a summary judgment in favor of an employer in this specific type of discrimination case, but I do not see how a reasonable person could sum up his position as “Alito would allow race-based discrimination.”

Captain’s Quarters reminds us that Alito’s “go by the law” doesn’t always please the right, but definitely approves of the nomination:

Alito, at 55, has the possibility of providing 20-30 years of jurisprudence on the Supreme Court, meaning that he and John Roberts have a real opportunity to turn the court back from its decades-long flirtation with supplanting the Legislature and turning itself into a strange American version of the Iranian Guardian Council. In this nomination, Bush may have hit the home run we wanted with the first nomination. Democrats may well try obstructionism, but they stand to lose the filibuster if they try — and if John Paul Stevens steps down or dies during the next two years, the path will open up for Janice Rogers Brown to take his place.

Power Line predicts:

We’re about to get the fight over Constitutional principles that conservatives have looked forward to for years.

Most humorous post goes to Daimnation!

My goodness, the Americans are actually going to have another debate over whether a nominee to the highest court in the land deserves to be there. Don’t they know the enlightened, Canadian way is to leave the decision entirely up to the whims of the Prime Minister?

Right Side of the Rainbow has some amusing reaction from the left. My favorite:

Hey, I don’t like it either, but what exactly do we fight on? That he’s conservative? That he once applied the “rational basis” test to a decision concerning parental notification? Do you really think that’s going to sustain a fillibuster? Come on.

You can’t win a war shooting blanks, and that’s all we’ve got right now.

Whaduya know, a rational Moonbat. Somebody better capture it and put it in a cage. Maybe we can breed it and save the species.

Bottom line from all this research is that Alito is clearly a jurist that is intent on enforcing the law, not bending it to meet an ideological agenda. For that reason, I am proud to join the

Update: Reader Bat One points out that Of Arms and the Law has a more extensive post on Alito’s Second Amendment rulings than I included in my post called Alito and Guns.

Harriet Miers withdrew her nomination to be a Supreme Court justice Thursday in the face of stiff opposition and mounting criticism about her qualifications.

President Bush said he reluctantly accepted her decision to withdraw, after weeks of insisting that he did not want her to step down. He blamed her withdrawal on calls in the Senate for the release of internal White House documents that the administration has insisted were protected by executive privilege.

RedState.org reports that “the reality of the situation has been conveyed to the President” and the White House is looking for another nominee on the QT.

Remember this guy?

Flashback to the aftermath of the presidential election in Florida. This was Judge Charles Burton, the chairman of the Palm Beach County Canvassing Board and a life-long Democrat, who was seen on millions of television screens day after day as he and his cohorts tried to divine a voter’s intent from examining hanging chads, dimpled chads and random dents and scratches on punch cards.

At the time I figured Burton for a partisan Democrat, attempting to discover Gore votes where none really existed. I wasn’t alone.

Then I watched the Gore lawyers challenge the Bush win in Judge N. Sanders Sauls court. (I was lucky in that I was at home and was able to watch the entire trial.) Judge Sauls was impressive. David Boies (lead attorney for Gore) was slimy. Barry Richard (lead attorney for Bush, I think) was forgettable.

But when Judge Burton testified, he left a memory that will never fade. He was honest and sincere. I could see the doubts that assailed the man, doubts about the process and the results. I empathized with him, understanding what a difficult ordeal the recount process, how exhausting to have had so much responsibility — a responsibility to truth and justice that he undertook willingly and with great seriousness. He took pains to try and make everyone understand the truth of the matter.

At that moment I came to believe that he was a man with high ethical values and a dogged determination to find the truth. I even found an email address for him and sent him a message, thanking him for his efforts, a Republican to a trusted Democrat.

Therefore, I am pleased to see that Gov. Jeb Bush has appointed Judge Burton to the Circuit Court bench:

Burton moves into a new spot on the Fifteenth Judicial Circuit, one of 55 judicial positions created statewide during the 2005 legislative session, Bush spokeswoman Deena Reppen said. Burton will assume his new position Nov. 1, Kroll said.

Burton spent 11 years as a prosecutor in State Attorney Barry Krischer’s office, leaving for a five-year stint as a civil attorney before returning as a prosecutor and eventually heading up the Crimes Against Children unit. He has been a county judge since May 2000.

Congratulations, Judge Burton.

On the Miers nomination:

When homosexual Republicans begin sniping at a GOP president from his right, might that be an indication that something is askew with his presidency?

From Right Side of the Rainbow, who also points to an (as yet) unpublished article by George Wills (posted by Southern Appeal) which contains this bit of wisdom:

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks. The president’s ‘‘argument’’ for her amounts to: Trust me.

Update: George Will’s column is up at Townhall.com. Another fav quote:

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked — to insure a considered response from him, he had been told in advance he would be asked — whether McCain-Feingold’s core purposes are unconstitutional. He unhesitatingly said, “I agree.” Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, “I do.”

With Republicans in control of the House, Senate, White House and the majority of govenorships Bush continues to make unnecessary concessions to Democrats. Is the man that ousted the Taliban and freed a nation so afraid of confrontation that he won’t nominate a known conservative to the most important judicial post in the land?

Don’t get me wrong, I’m tickled pink that Bush didn’t nominate gun-grabbin’ Gonzalez, but to pass over great picks like Priscilla Owen and (my fav) Janice Rogers Brown? And talking about gun-grabbers, does anyone know anything about Miers’ stance on the Second Amendment? The War on Guns notes that Miers speaks supportively of Project Safe Neighborhoods. That’s a strike against her right there.

I thought I voted for a conservative — twice. President Bush has demonstrated that he is on the liberal end of that label — twice.

Let’s see how the ‘sphere is reacting:

• Will Bunch Blog details Miers’ involvement with past Bush potential scandals: his National Guard Service and some Texas Lottery Commission shenanigans:
  

  This all could be interesting fodder for a Miers confirmation hearing this fall. But Bush apparently went for Miers’ top two credentials:

  Loyalty…and a little inside information.

  [HT to Just a Bump in the Beltway]

• Instapundit is “underwhelmed” and QandO Blog agrees:
  

  So far as I can tell, Miers’ qualifications include a tolerable resume and a fierce loyalty to President Bush. And in an administration predicated on loyalty and cronyism, that’s all it takes.

• The Volokh Conspiracy has mixed feelings:
  

  But my initial reaction is that it’s unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more “independent” perspective to issues of government and especially presidential power. And appointing his “personal lawyer” from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I’m please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.

• Ankle Biting Pundits gets it exactly right:
  

  Here’s another question – when Miers comes under the inevitable attack by the left, why should conservatives go to the mat for her? What has she ever done to convince us she’d be in the mold of a Scalia or Thomas? Is Harriet Miers why the base was out knocking on doors and making phone calls? I don’t think so. To use a phrase, conservatives really have no “skin” in this game, and quite frankly many likely wouldn’t be disappointed if she’s rejected, which will at least give the President a chance to nominate someone that could fire up conservatives.

• Ditto from Betsy’s Page:
  

  The reports are that senators on both sides of the aisle. Well, if that is the criteria on which she was chosen, that is very disappointing. That is not a position of leadership, but of bowing to pressure.

• Confirm Them isn’t thrilled and posts Meirs’ political contributions which go to both sides of the fence (let’s hope she does better with her decisions).
• Outside the Beltway:
  

  While President Bush is not playing from a position of commanding strength, to say the least, at the moment, virtual surrender to the Democrats on something this important is hardly necessary.

• PoliPundit is “not thrilled“.
• Captain’s Quarters is mystified:
  

  Miers may make a great stealth candidate, but right now she looks more like a political ploy. Color me disappointed in the first blush.

• Angry Clam posting at Patterico’s Pontifications pulls no punches:
  

  You know, just when I thought that the worst possible move that the Bush Administration could make would be to nominate Alberto Gonzales, he goes and shows me up.

• Right Wing News says this is the “worst decision of Bush’s entire presidency”:
  

  To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection. …

  You want a candidate who has “Souter” written all over her? You want a candidate who can’t be trusted to overturn Roe v. Wade? Well, her name is Harriet Miers.

• Power Line is disappointed:
  

  Regardless of what the Democrats do, many Republicans will have misgivings about this nomination. “Stealth” nominees have not turned out well for Republicans.

  PAUL concurs: This nominee is a two-fer — she would not have been selected but for her gender, and she would not have been selected but for her status as a Bush crony. So instead of a 50-year old conservative experienced jurist we get a 60-year old with no judicial experience who may or may not be conservative.

• Confederate Yankee is unimpressed.
• Mary Katherine Ham:
  

  Bill Kristol was just on Fox, saying, “it’s hard to see this as anything but a flinch from a fight.”

  He added that it sends a very bad signal for Bush to pass over distinguished conservative women with strong records who have been fighting for constitutionalism for years for someone with no record. I agree.

  [HT to Club for Growth Blog]

• Right Side of the Rainbow is taking a “wait and see” approach, but:
  

  What is it professionally that qualifies Harriet Miers for a seat on the U.S. Supreme Court? Is this A) an affirmative action hire, or B) another instance of Bush Administration cronyism or C) both A & B?

• Balloon Juice says the pick doesn’t make sense.
• Michelle Malkin is “utterly underwhelmed” and has a blogosphere roundup.

Last Friday, Right Wing News polled 14 bloggers about the upcoming nomination. It is interesting that five of them specifically mentioned Miers as the choice “you really hope Bush doesn’t pick”. So 1 out of 3 bloggers specifically rejected Miers before she was even nominated!

Blue State Conservative is “having a hard time finding a blogger happy with Bush choice.” Ditto!

Time to write my Senator, for all the good it will do. Although I have hope, encouraged by a post from SCOTUSblog:

I have no view on whether she should be confirmed (it’s simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O’Connor will still be sitting on the Court on January 1, 2006.