What the Miers fight means for future nominees, and for politics in Washington.
BY BRENDAN MINITER
Tuesday, October 11, 2005 12:01 a.m. EDT
In contrast to John Roberts, who sailed through Senate confirmation, Harriet Miers is taking no shortage of criticism from Republicans, many of whom admit they know little if anything about her.
Sen. Arlen Specter says she needs a "crash course" in constitutional law, while admitting he didn't ask her any constitutional law questions when he met with her "because I don't think she's ready to face it at the moment." "Look," he told a reporter last week, "the lady was White House counsel dealing with totally other subjects until Sunday night when the president offered her the job. And Monday she's sitting with me. I'm not going to ask her questions which she hasn't had a chance to study or reflect on."
That's a bit condescending, even unfair. But the criticism cannot come as a surprise to anyone who has followed judicial politics since Robert Bork went down to defeat in 1987. Republican presidents since then have largely avoided open battles over judicial philosophy and have enjoyed the tacit approval of their party in doing so. The underlying belief has been that political realities require tiptoeing conservatives past a liberal Senate. Even many conservatives accepted for a time that the best they could hope for was a "stealth nominee": one who had an internal conservative compass that wouldn't be spotted by liberal senators.
Those days are now over. The shortcoming of stealth candidates has long been apparent. Anthony Kennedy, whom President Reagan nominated after Judge Bork's defeat, hasn't moved the court to the right. David Souter--the quintessential "stealth candidate"--was put on the court by the first President Bush in 1990 and has become a symbol to the right of why unknown candidates must be resisted.
Anyone who suppresses all evidence of having conservative principles for decades in hopes of one day winning a seat on the Supreme Court probably isn't really a conservative. It's also not rational to assume that a justice would suddenly find his inner conservative once he moves inside the Beltway and assumes a lifetime appointment to the most powerful court in the land. Usually the opposite is true--the longer one holds power in Washington the more likely he is to surrender his conservative principles. The reason for the angst now is that only President Bush and Texas Supreme Court Justice Nathan Hecht have ever gotten to know Ms. Miers's inner conservative.
This is why the Miers selection is disconcerting for conservatives. Winning the presidency comes with a certain electoral mandate, as does winning the Senate. Except for a brief period after Sen. Jim Jeffords handed control over to Democrats, Republicans have controlled the Senate since 1995, and they picked up four net Senate seats last year, in part by campaigning against Democratic obstruction of judges. Mr. Bush also campaigned last year on the pledge that if he was re-elected he would appoint justices in the mold of Antonin Scalia and Clarence Thomas--about as unstealthy as you can get. Once the election results were in, the political necessity of a stealth nominee seemed to have passed.
But the desire for stealth nominees proved harder to kill than many realized. Chief Justice Roberts himself was something of a stealth nominee, albeit a very good one. Ms. Miers is even more of an unknown, and Republicans across the spectrum are balking. After all, why take a chance on another stealth nominee when Republicans control the Senate and could confirm a solid, serious conservative? Why bunt when you can hit a home run?
It's a mistake, however, to assume Ms. Miers comes from the same mold as Justice Souter. For starters, he wasn't a judicial unknown. His public legal career was more than a decade old by the time he was nominated; he had only recently been plucked off New Hampshire's Supreme Court to become a federal circuit judge. That he didn't stand out as a conservative was the reason he was appealing to an administration hoping to avoid a damaging confirmation fight with a Democratic Senate. Another tipoff on Mr. Souter was that one of his strongest champions was New Hampshire's Sen. Warren Rudman, a moderate Republican.
Ms. Miers's strongest supporter, meanwhile, is the president himself. Mr. Bush wasn't bamboozled into a making a tactical political decision. Ms. Miers is the person he wants on the court.
If Ms. Miers's nomination is defeated, if she withdraws her name from consideration, or perhaps even if she is just badly roughed up by the right, she will probably be the last stealth candidate a Republican president puts up for the high court, at least as long as the GOP holds the Senate.
But let's also be clear, if Ms. Miers's candidacy is sunk, it will be a rebuke not only of her but of the president himself. For some on Capitol Hill such a rebuke will come at a steep political price. This president has been extremely cooperative with Congress, but if he is handed a large and very public political defeat by the Senate, the political dynamics will change. The president may even decide he needs to take a stronger hand with Congress if he is to get anything done in his last few years in office.
We can hope getting tougher would mean allying with spending foes in the House, vetoing pork-laden bills and shelving plans to back "safe" but moderate Republican senators (like Mr. Specter) when they face serious primary challenges from conservative candidates. We can also hope getting tough would include picking a solid conservative Supreme Court nominee. But in any case, the political climate is changing in Washington.
Mr. Miniter is assistant editor of OpinionJournal.com. His column appears Tuesdays.
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