Bill Steigerwald Bill Steigerwald, 7/14/2005 [Archive]

Manny Miranda On The Court

Q&A with Manuel Miranda on Supreme Court changes

Manuel Miranda no longer is the top counsel on judicial nominations for Senate Majority Leader Bill Frist, but he still keeps a close eye on the exciting doings at the Supreme Court. Miranda made headlines in 2003 when he was investigated for reading about 4,500 Democrat staff memos relating to President Bush's judicial nominees that he allegedly improperly accessed through a shared Judiciary Committee computer network. Miranda, who now chairs the National Coalition to End Judicial Filibusters, resigned but steadfastly maintains he did nothing wrong. I talked to Miranda by telephone from his offices in Washington.

Q: What will President Bush do now to fill Sandra Day O'Connor's spot on the Court?

A: He has to make a final decision to elevate either Justice (Antonin) Scalia or (Clarence) Thomas. That's the first decision. Either way, he has to fill a new empty seat, and presumably he's already made that decision or he's narrowed it down to three choices. My guess is that the president will finally choose among Michael Luttig, John Roberts and Emilio Garza. They are in the order of most-supported in Washington to least-supported in Washington.

Michael Luttig is the nominee of the Federalist Society and has a good many clerks here in Washington pushing his nomination.

John Roberts is the nominee of centrist Republicans. He's probably the kind of nominee that the president's father might have selected. He is widely regarded in academic circles and among folks who argue before the Supreme Court. He argued 19 cases before the Supreme Court before becoming a judge in the D.C. Circuit.

And Emilio Garza is an unknown to the power elites in Washington, but he is well known to the president. The president's father had him on the short list when he eventually picked David Souter. Emilio Garza is probably the most prominent Hispanic nominee available to the president. He has been very critical of Roe v. Wade. He's very solidly conservative.

If the president turns to him, he will be making a decision that is from his gut, the kind of nomination the president likes to make -- which is that President Bush likes to tell a story and that certainly would be the case with Emilio Garza.

Q: Who do you want to see President Bush nominate?

A: I think Ted Olson would be a great chief justice. I don't think he's too old for the job. I think he's in good health. It would be a good political move, as well, for the 9/11 president to nominate the 9/11 chief justice. Ted Olson's wife (Barbara) died on 9/11 in the plane that crashed into the Pentagon.

But more importantly, I think this is an opportunity to choose an old-fashioned chief justice. The old-fashioned chief justice was someone who was well-known to American society, who represented the American Constitution to the American people and was a popular person -- almost a rock star in older days.

Q: Can you accurately characterize the court as a conservative court, given the Kelo eminent domain ruling?

A: No. Not at all. I think it is conservative on some issues but it's obviously liberal on other issues. Actually, the description of conservative and liberal is not an apt description. The more apt description is whether this is an activist court, and this is most definitely an activist court -- and a court whose majority does not look to either how the Constitution is written or what the Founders intended.

Conservatives are divided into two schools on the court. Scalia and Thomas are not the same guy. Thomas is an originalist and Scalia doesn't really care what the Founders intended; he asks what the Founders wrote. He asks for a sentence in the Constitution.

Obviously, the majority of the court is literally writing legislation from the bench.

Q: Will Bush push hard to add conservatives like Scalia or Thomas, or will he chicken out and go for the moderates?

A: I think he's going to nominate a solid nominee. It may not be Michael Luttig, who is the most hardcore, but it will be a solid conservative nominee who has a paper trail.

Q: Does President Bush have the political capital and public approval to get what he wants?

A: Yes, he does, and that is demonstrated by the 51 or 52 reliable votes in the Senate. He'll probably lose (Olympia) Snowe and (Lincoln) Chafee, no matter who he nominates. And he may lose (Susan) Collins as well, but he's unlikely to lose any other Republican senator -- and he won't get a filibuster on any nominee. They may try to filibuster, but that would collapse the May compromise.

Q: Do the Republicans in the Senate have the will or desire to fight to give Bush who he wants?

A: Yes. I think the May compromise is the low point of surrender for Republicans. I don't think that anyone would tolerate any more surrender, so I think the president has a free pass to nominate as conservative a nominee as he wants.

Q: You don't expect the Democrats to invoke the "extraordinary circumstances" clause?

A: I do think that they will make an attempt to do that, but it will be hard to convince (Joe) Lieberman, (Ben) Nelson and a few of the other Democrat moderates to do it. For Patrick Leahy, Mother Teresa will no doubt have extraordinary circumstances. ... I think the Democrats will no doubt be like petulant children, but at the end of the day, the moderates really took away this issue from the extreme liberals in the Senate, and I think there will not be a filibuster.

Bill Steigerwald is a columnist at the Pittsburgh Tribune-Review. E-mail Bill at © Pittsburgh Tribune-Review, All Rights Reserved.

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