Nathan, I hate it when I feel like a queasy middle-of-the-roader compared to you, but -- as I've implied already on my site, and will try to make clearer here -- McConnell may well be the best sort of nominee we could get from this current illegitimate President.

Unless the Democrats are going to shut down the confirmation process entirely -- which they won't -- Bush is going to nominate people who are very very conservative. And a David Souter is a once-in-a-generation stroke of luck; it's not that hard for a President to know where a nominee will come out on the political/jurisprudential spectrum.

So, from my point of view, having to deal with Ct. of Appeals judges day in and day out, I'd much rather have one who is smart and honest and pleasant (even if hard-right) than one whose best qualification is that he was the friend of the Republican Senator (or even of Gen. Rove). A good lawyer with a good argument can win in front of the smart and honest and pleasant one, at least sometimes. It's the close-to-dumb, completely knee-jerk ones, that are the real danger (and there are way too many of those) and should be opposed with all our might.

In other words, most Bush appointees would probably love to adopt a far-right (even loony, to our eyes) "Contracts Clause" argument if given a chance; the fact that McConnell was actually smart enough to think of the argument doesn't make him any more scary to me, given that poorly-written and poorly-reasoned conservative judicial opinions are at least as harmful as -- and even more harmful than -- intelligent ones. So, until we throw his ass out in 2004, let's try to get Bush to nominate nice smart rightwingers rather than more P. Owenses.

Your queasy middle-of-the-road friend, Sam

I agree with Sam as a practical matter. If I were voting, I'd let this one slide. McConnell is very bright and fair-minded, although I disagree with him on church-state questions. His point about Blaisdell is supported by the Constitution's text, so it is not an off-the-wall argument. I happen to think the case was correctly decided as a matter of practical jurisprudence.

And remember Nathan, we're talking about the Court of Appeals, not the Supreme Court. If McConnell were picked for the Supreme. Court, I'd might feel differently. Remember Bork was approved for the Court of Appeals, but rejected for the Supreme Court.

Finally, we should save our ammunition for Estrada. He's the next one up.

Now it's my turn to agree with Paleo, on two things: first, McConnell shouldn't be confirmed if he is nominated next for U.S. S.Ct. (Paleo doesn't say this flat out, but I do), and Estrada's nomination is the time for a flat-out fight. My reason for saying so about Estrada is mostly related to the Court he's nominated for: DC Circuit. A very important court, of course, especially but not only to us labor lawyers (as every company can forum-shop its way to that court for review of any NLRB order). And the Repubs, during the Clinton administration, refused for years to confirm folks to that court. So the time has come for some political hardball, with the avowed and actual goal of ending this nomination and confirmation bs for a generation or so. The specific "read my lips" statement should be: "We're not confirming ANYBODY to the D.C. Circuit unless for each Bush nominee there is a nominee chosen by the Democrats in the Senate, as payback for the Clinton-era Repub refusal to confirm people to this Court. Repubs made Clinton cave in on a similar trade-off in the Ninth Circuit (a Wash. State seat) -- so Bush can cave in, too. And we're not confirming ANYBODY to the Supreme Court, we'll have you know, who's not a certified moderate." The American people would respect, and stand behind, this strong stance if it were spoken honestly; the American people are in fact starved for honesty. Will our Democrats in the Senate disappoint us on this? You bet.

Your no-longer middle of the road friend, Sam

Okay, since we are among friends, I'll agree that McConnell is far more appealing-- I think his "original intent" justification for Brown v. Board is brilliant and right; he's not a racist which is a big plus as a nominee.

But on strategy, I think we should be battling on every nominee on every issue possible, if only to force them in their nomination hearings to promise not to do the things we fear. The Dems may confirm some for compromise reasons, but those of us in the grassroots don't need to compromise. We can denounce each and every judge for their particular sins and refuse to grant this President the right to take over a third branch of government, having assumed control of his branch illegitimately in the first place.

Nathan and Sam. Thought you might be interested in this piece:

http://www.thenation.com/doc.mhtml?i=20021007&c=6&s=newfield

Fighting every judicial nomination is a bad thing. Period. Full Stop. Why? Small lesson of history and strategy. Doing this create an 'issue' to give to voters in the states that matter. It mobilizes the issue voters. As Truman noted it was the label of a do nothing Congress that got him narrowly relected. Secondly, for noted strategist Sun - Tzu, if you defend everywhere, you defend now where.

I'm going to have to agree (albeit reluctantly) with Alex on this one. I think that are far more egregious examples of ideologues that we can and should oppose vigorously. Does this mean I support McConnell's nomination? By no means. I happen to believe in Sun Tzu's theory. We must shepherd our energies, and pick the battles where we can do the most damage. I just don't think that is the case here.

Can anyone cite a post-Civil Rights era example of a lower court judicial nomination vote mattering politically?

Hey Nathan,

The contracts angle is a real scoop! You're a regular I.F. Stone.

Anyway, I just want to say that I oppose McConnell for a more common reason--he's an utterly unapologetic social conservative. He's said that employers should be able to discriminate against homosexuals just as they can choose not to hire alcoholics. True, he followed this up by immediately abstracting from the issue and saying "it's a moral choice." But the contempt is barely disguised.

I am disgusted by the liberal academics who are backing this guy. It's so obvious they just want to create some sort of precedent for appointment of their ilk when progressives retake the White House (in 2012 or so...). But that's idiotic! Anyone who's advanced ideas as far to the left as McConnell's are to the right would be crucified in committee and filibustered on the senate floor by Santorum or some other troglodyte.

--Frank

Frank raises the flag on why we should not take liberal law profs support for McConnell too seriously. They have a self-interest in weak Senate oversight of nominees, since they hope to get nominated themselves.

Of course the GOP will seek to block liberal nominees-- and more power to them (not that they need it given their past blocking of Clinton's folks), but that's democracy.