After a week of study and reflection, here are my thoughts on President Bush's nomination of his personal lawyer, Harriett Miers, to the Supreme Court:
My initial reaction was clear and visceral. The nomination was deeply disappointing and demoralizing on several levels:
- qualifications: There were so many extremely qualified candidates on a national level with constitutional credentials. The best legal minds in the country with the blessing of the best conservative scholars. The only list in the group that Harriett Miers' name was on was the President's. As George Will eloquently argued in his opinion piece on the topic, this was not a serious nomination.
- squandering an opportunity: Conservatives have been toiling for in excess of thirty years just for this day. All of that work to elect a conservative President with a Republican House and a Republican Senate to lay the groundwork for this crucial appointment when Justice O'Connor would retire. Make no mistake, this seat is the swing vote that will change the judicial direction of the court for a long time. Filling this seat cannot be left up to chance, to an unknown. It's not enough for the President to say to his base "Trust me". Not by a long shot.
- diversity politics: President Bush bowed to identity politics that demanded that O'Connors seat be filled by a woman above all else. That's not conjecture, that's reported by the President's people. My objection is not that the seat will be filled by a woman, but that it could only be filled by a woman. There were plenty of conservative women as candidates that would have filled the bill and been considered legitimately as the "best qualified". Harriett Miers, not.
- cronyism: not in the sense of financially rewarding personal associates. In the sense of being so narrow and provencial that in lieu of selecting the best qualified for a position of critical national importance you select the best qualified that you personally know. We can't afford that, judicially speaking. We've had enough of that with failed appointments at federal agencies like FEMA and Immigration. We can't afford that on the Supreme Court.
- ducking a fight: Selecting bona fide conservative jurists with a track record would likely have brought a confirmation fight with the Democrats, which most conservatives would have relished. Pat Buchanan rightly points out that the President missed an opportunity to rally conservatives to his side at a time when he needs them by waging the fight that we wanted for the court. Most importantly, the lesson of the Roberts confirmation was that a brilliant nominee can beat the Judiciary Committee and win confirmation. The President chose not to follow up with such an impeccably credentialed conservative nominee and win the fight. Now he has an unintended fight with the conservatives that he betrayed.
That was my initial reaction - that President Bush made such an ill advised choice that he essentially betrayed the conservative base that worked hard to elect him and to promote and defend his policies. It was an unbelievably ill-advised decision.
I've heard two mitigating arguments in support of the President's decision this week. 1) His father's mistake, Justice Souter who went liberal on the court, was accepting recommendations for a judge he didn't personally know and 2) the Republican Senators who would be the President's army in a nomination fight are too squishy to count on. Given their sellout in the Clinton impeachment, and the deal struck by the Sen. McCain and the Gang of 14 to pre-empt fillibusters, that is a considerable argument. Despite having the majority, too many Republican Senators are squishy and cannot be counted on in a fight.
I'm sure Miss Miers is a fine and capable person. I am certainly encouraged by the discussion of her faith life as an evangelical Christian, and what that likely portends for her votes on the court. She probably will vote the conservative, originalist, position most of the time. But it is not a certainty. And that's the problem.
Do I know for sure that this former city councilwoman would have voted no in the horrible Kelo vs. New London case in the last court, which allows those councils to excercise eminent domain to seize property from private citizens and give it to private businesses on the basis that it will generate more sales tax? No, I don't. O'Connor voted for this abomination that invalidates private property rights in America. Who knows where Miers would have stood.
Do I know that Miss Miers would uphold bans on the abominal partial-birth abortion procedures that will come before the court? No, I don't.
And that's the problem. All of these type decisions end up being decided 5-4, and it can't be unclear with this nomination which side of the 5 that she will be in. That's not what we worked hard to elect a conservative President for. That's not what we worked hard to elect a Republican Senate for. Not for uncertainty.
Since the nomination, the President and his spinners - including Mrs. Bush - have demonstrated their cluelessness on the depth of disappointment that this careless nomination has caused in the base. Clueless. If he wants to come out and attack conservative critics of his unqualified nominee as "sexists" or other such nonsense, he will pay a price in support.
Here's what I think will happen.
Miss Miers will be confirmed to the court. President Bush will not withdraw her. Democrats don't have the votes to stop her. Republicans will suck it up and reluctantly vote for her.
Democrats will look bad in the Judiciary Committee when they start attacking her Christian faith, which they surely will. Most, but not all, will vote no.
Republicans will give her a hard time, and then vote for her. Then they will excercise their ire with President Bush. He has squandered his margin of error. No more automatic support from the conservative base. No more slack for President Bush:
- no more slack on failing to do anything serious on controlling our border after 9/11
- no more slack on reckless spending and failing to veto a single spending bill
- no more slack on crony appointments in federal agencies
- no more slack on dissing issues conservatives care about (i.e. dissing the Minutemen as "vigilantes", the Swift Boat Veterans, etc.)
The President could have shown leadership here. He could have selected one of the top 20 conservative jurists in the country and waged the fight for direction of the most important court in the land. He would have rallied his conservative base and energized his second term.
Instead, in one weak and inconsequential choice, he demonstrated his limitations and disillusioned his champions. A big mistake. Perhaps an unrecoverable mistake.
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