Legal Ethics Forum: William Kelley’s cynical claim that under President Bush a Garland nomination would have been "laughed out of the Oval Office”
by RichardPainter (University of Minnesota School of Law, former White House Ethics Counsel under GW BusH
His letter to the New York Times is here:
He is responding to my op-ed here:
Kelley describes a President Bush who was so rigidly committed to “conservative” judicial philosophy that he would have refused to nominate someone like Judge Garland to the Supreme Court, even if he had needed to get a nominee confirmed by a Democratic controlled Senate (that is the scenario I was discussing in my op-ed). Kelley then goes even further to say that President Bush would have laughed at any anyone who even suggested nominating Garland.
That is not the President Bush I knew when I was in the White House (the same time Kelley was there). Laughing at other people’s ideas is not the way I saw President Bush conduct himself in the Oval Office or anywhere else.
President Bush’s own nominations to the Supreme Court also reveal a broader vision of the Court. This is true even though all of his nominations were made when Republicans controlled the Senate and the President did not necessarily need to look for moderate nominees.
Chief Justice John Roberts was President Bush’s first choice for the first open seat on the Court. Harriet Miers was his first choice for the second open seat on the Court. Roberts and Miers are very different people, but one thing they share in common. Both infuriated ultra conservative Republicans -- Roberts since he joined the Court and Miers at the time of her nomination.
Both Donald Trump and Ted Cruz are dumping on Roberts in the campaign. Several Senators are now piling on. Senator Charles Grassley of Iowa is Chairman of the Senate Judiciary Committee and is doing more than any other senator to block a vote on the Garland nomination. Here is what he has to say about Chief Justice Roberts:
Apparently Chief Justice Roberts “politicized” the Supreme Court by refusing to rule against the Obama Administration in enough cases, particularly on health care.
Are Grassley and some of his colleagues worried that Judge Garland could be another Chief Justice Roberts?
I won’t repeat here diatribes – and falsehoods – recited by right wing pundits and politicians about Harriet Miers at the time of her nomination. Part of their argument was that Miers was not qualified (she had not previously been a judge, yet several Supreme Court Justices have not previously been judges). But it was her lack of an ideologically conservative record that conservatives were really worried about.
Kelley advised President Bush on this nomination. President Bush was aware of what ideological conservatives and other interest groups wanted, and yet President Bush nominated Miers anyway. The conservatives had a fit, the Democrats let the nomination twist in the wind, and it was withdrawn. President Bush’s second choice, Justice Samuel Alito, was more to the conservatives liking.
Kelley casts Bush in an unflattering light. His depiction of the former President may provide convenient cover for Senators who don’t’ want to do their job and hold a hearing on President Obama’s nomination of Judge Garland. But the notion that Bush would have laughed at the idea of a Justice Garland – or at the idea of nominating a moderate like Garland to the Court -- isn’t true.