I disagree with right-wingers who profess to be heartened by the rancorous debate among conservatives over the Miers nomination. Unfortunately, in many cases, the disputes have degenerated into personal attacks, which are doubtlessly pleasing liberals to no end.
President Bush has made his selection, and it’s not going to change. He’s not going to withdraw his controversial nomination like Bill Clinton dumped his law school classmate Lani Guinier at the first sign of trouble. Despite Clinton’s long-term friendship with the "Quota Queen," he claimed he was unaware of her extremist writings when he nominated her. Unlike Clinton, President Bush wouldn’t abandon one of his own in a million years — especially since he has known her well and recently.
Though I suspect he’s been shocked by conservative opposition to his pick, I also suspect that he’s more entrenched than ever in his position. He seems to rise to higher levels when under fire, which is one of the reasons I’ve been somewhat disappointed with this nomination. It appears to many that in picking Miers he gave up without a fight.
Most of Miers’ skeptics aren’t insisting that nominees hail from elite, Ivy League law schools. But many did have their hearts set on one of a fairly small group of eminently qualified judges and lawyers who have, in effect, been in training for this position for years.
That group consists of people they strongly believe to be originalists precisely because they have established a reputation as just that: unapologetic originalists. They have been unafraid or forced by circumstances to make their judicial philosophy known through their advocacy, scholarly writings, judicial opinions, speeches or otherwise.
The skeptics preferred those whose judicial philosophy is a matter of public record, or readily discernible, without ambiguity, because they are a far safer bet to be originalists than any other possible choices. They’re also more likely to resist the pressures that compel some justices — like Anthony Kennedy — to "grow" over the years.
The skeptics also believe that since President Bush won re-election and there are 55 GOP senators, it was high time he pick a strong originalist. Sure, that would bring on a "nuclear battle" in the Senate. But they were prepared for that and confident Mr. Bush could win that battle, even with a few defections from the GOP Seven of the tyrannical Gang of 14.
They would welcome that nuclear confrontation, not because they’re pugnacious sorts and not because they want to rub Democrats’ noses in it. Rather, it’s because they believe we’re past due for a public debate on the proper constitutional role of the Court.
Above all, they didn’t want the president to send a signal with this nomination that he had abandoned his goal of picking a known originalist. Such a surrender could have a deterrent effect on future originalist judges working their way up through the system. It would also send the unmistakable signal that conservatives have unilaterally thrown in the towel over an issue that has motivated their grass roots like no other in the last 30 years.
When President Bush picked Judge Roberts, I was initially concerned that he was sending the signal of surrender then: that known originalists need not apply. Roberts was beyond qualified, but his judicial philosophy remained shrouded in mystery. In time, his early writings provided some comfort. I ended up cautiously optimistic that Roberts would be phenomenal, provided he didn’t allow his reverence for stare decisis to outweigh his disdain for clearly unconstitutional precedent. Even after the hearings, however, we still don’t know for sure.
With the Miers pick we have, at this point, another stealth candidate — another conflict-avoidance solution. It appears that President Bush did not want to risk a confirmation fight, which is very disturbing because if he intends to make an impact in the balance of his term, other than in the War on Terror, he must be willing to fight Democrats on social and economic issues as well.
Indeed, the best insurance he has to guard against a lackluster second term is to approach all problems the way he has handled the War on Terror: with firm resolve and strong leadership, putting principle over all other considerations.
Conversely, the surest way he can end his presidency with a whimper is to abandon conservative principles and veer to the mushy, lukewarm middle — the perennial prescription of so-called centrists and "well-meaning" liberals. To the extent he’s suffered in the polls lately, it’s largely because he has veered left in certain areas, especially domestic spending.
While the Miers nomination has been disappointing to many conservatives, what’s done is done. As long as she’s qualified (she doesn’t have to be the most qualified to be confirmed), the selection is a matter of the president’s prerogative. In the meantime, I hope that President Bush can regroup and approach the balance of his presidency with the same confidence and determination he has shown in the War on Terror.