Lessons for the president's next nomination.
Friday, October 28, 2005 12:01 a.m. EDT
The withdrawal of Harriet Miers's nomination to the Supreme Court was going to happen sooner or later, so better that it happened yesterday, which is to say quickly and before any Senate hearings. The issue now is whether President Bush draws the proper lessons from this unhappy episode as he contemplates his next nominee.
To wit, in today's polarized judicial politics, it is unwise to nominate anyone but a seasoned and top-flight constitutionalist to run the Senate confirmation gantlet. Ms. Miers has many virtues, but it was simply unfair to send her--a non-combatant in the judicial wars--to the equivalent of the Russian front. All the more so when the White House had obviously done little preparation or vetting.
The result is that she found herself caught in a political crossfire, between conservatives suspicious of another stealth nominee (think David Souter) and liberals waiting to shoot her once she was wounded. Yes, some on the right pounced on Ms. Miers as if Mr. Bush had never nominated a single conservative judge as President. And a few were especially eager to get their 10 seconds of fame in the mainstream media (they'll now return to oblivion). But Ms. Miers failed in the end because she couldn't convince enough people that she really was the judicial conservative that Mr. Bush claimed.
The tipping point probably was this week's report of a 1993 speech in which Ms. Miers spoke approvingly of "self-determination" in resolving legal disputes about abortion. The view expressed in that speech seemed at odds with the White House's initial presentation of Ms. Miers as a pro-life evangelical Christian who--hint, hint--could be counted on to vote to overturn Roe v. Wade.
No matter what one's view of Roe, the speech fed the fears of those who worried that Ms. Miers's judicial views were not fully formed, and that her tenure on the Court would thus be an act of self-discovery a la Sandra Day O'Connor, the Republican appointee whose seat she was selected to fill.
Post-Miers, the political danger for Mr. Bush is that the episode shows he can be pushed around. This is already the chief Democratic talking point. Senate Minority Leader Harry Reid immediately fingered "the radical right wing of the Republican Party" as responsible for the withdrawal. This is more than a bit rich, since it is Democratic threats of a filibuster that have caused Mr. Bush to look for nominees without too bold an intellectual pedigree. Mr. Reid is merely trying to deter Mr. Bush from making the kind of nomination that he knows would divide his own dominant liberal wing from Red State Democratic Senators.
Mr. Bush also shouldn't show much deference to Judiciary Committee Chairman Arlen Specter, who yesterday moaned that the withdrawal was a "sad episode in the history of Washington." But Mr. Specter's warnings against nominating certain conservatives are one reason Mr. Bush picked Ms. Miers. And the Senator hardly contributed to the welcoming committee, appearing at one point with his liberal counterpart Pat Leahy (D., Vt.) to demand that Ms. Miers re-submit her Senate questionnaire. The lesson here is that Mr. Bush shouldn't take nominees off the table merely because certain Senators claim they might be hard to confirm.
The best way Mr. Bush can counter the "capitulation" charges is to show that he's not afraid of a political fight. He said yesterday that he will act quickly to name a new nominee, and we hope he'll select someone who can't be challenged on grounds of credentials--even if it means a Senate battle over judicial philosophy. There is a long list of candidates who, like John Roberts, fit that description. No one should get an automatic veto because he or she once said or wrote something potentially controversial on abortion or some other subject.
We also hope the President won't take anyone off the table because he--and we use that pronoun intentionally--doesn't meet a "diversity" test. Talent and experience trump ethnicity, and there are many supremely qualified jurists who happen to be white males, such as J. Harvie Wilkinson, Michael Luttig, Michael McConnell, or Sam Alito. There are many highly credentialed women and minorities who are also worthy of re-consideration: Edith Jones, Janice Rogers Brown and Priscilla Owen, to just name a few. But well-known is better than stealthy.
The next nominee is not just about the Supreme Court but about fortifying Mr. Bush's political standing and bringing some forward momentum to his Presidency. Paradoxically, a judicial fight over philosophy is likely to help him. It will rally his core supporters, something he'll need if there are indictments in the Valerie Plame "leak" investigation. A debate would also educate the country about what is at stake in these Supreme Court nominations.
In choosing Ms. Miers, Mr. Bush tried to avoid such a debate, perhaps because he thought he had enough other fights on his hands. But the avoidance cost him much more than had he lost after a pitched battle on principle. The biggest lesson of the Miers nomination is that Mr. Bush can't avoid the battle for control of the Supreme Court that he promised Americans he would make in two elections.
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