In the aftermath of President Bush’s nomination of Harriet Miers to the Supreme Court, most conservatives are united on only one point: She wasn’t their first (or even, perhaps, their tenth) choice. Indeed, some of the right’s most prominent pundits and intellectuals have expressed full-throated and unqualified opposition to the President’s pick.
Although some Miers opponents have based their objections on the nominee’s alleged “underqualification” or on “cronyism” concerns, at the heart of their hostility are misgivings about Ms. Miers’ ideology and judicial philosophy. Understandably, Miers’ conservative opponents want to ensure that the vacant Supreme Court seat goes to a jurist who will, as the phrase goes, “interpret the law, not make it.”
But some have gone so far as to demand that President Bush withdraw the Miers nomination before hearings begin. That’s a deeply misguided strategy, for several reasons.
First, recall that at the conclusion of the Roberts hearings, Republicans gleefully pointed out that 22 Democrats, led by Senator Charles Schumer (D-NY), had voted against a clearly qualified and truly outstanding nominee at the behest of far-left special interest groups. Forcing the President to withdraw the Miers nomination likewise would open Republicans to charges that the President is toeing a line laid down by a highly energized and vocal interest within his own party. That, in turn, would position the Democrats to argue, wrongly but credibly, that judicial selections are being dictated by an elite cadre of "scary extremists." Hardly the impression that Republicans want lingering in a voter’s mind on Election Day.
Moreover, for the past five years, Republicans have, quite rightly, faulted Senate liberals for imposing an ideological litmus test on judicial nominees. Noting that Ruth Bader Ginsburg was confirmed with a vote of 96-3 and that Antonin Scalia ascended the court on a 98-0 vote, Republicans have repeatedly invoked the days when nominees were evaluated on their qualifications and competence – not on their ideology. By opposing Ms. Miers on the basis of their worst (but yet unproven) fears about her political preferences or philosophy, conservative critics lend credibility to the argument that both judging itself and the evaluation of judicial nominations are irreducibly political exercises.
Finally, a premature withdrawal of the Miers nomination would create other political problems. Outside-the-beltway Republicans, along with evangelical leaders like Dr. James Dobson and Richard Land, look favorably on the Miers nomination. Anti-Miers rationales – ranging from "we’re afraid she’s not an originalist" to "she’s not the best qualified candidate" to "the President should have picked someone else" – simply don’t resonate with a significant portion of the Republican base. They see nothing amiss with Ms. Miers’ credentials, and are inclined to trust the President’s judgment on the nominee given his record on appellate judges, tax cuts, the war on terror and social security reform. Seeking to sabotage the Miers nomination before a hearing creates the misimpression within the party (and without) that some prominent Republicans disdain the achievements of a woman who is, at the very least, an accomplished legal practitioner and trailblazer.
One commentator has quipped that the President would pull out of Iraq before he’d pull the Miers nomination. That’s probably true. And even Miers’ fiercest opponents suspect it. So they are faced with a choice: The critics can either continue to insist on the withdrawal of the nomination, thereby exacerbating whatever political damage the Miers pick has already created – or they can give Harriet Miers a chance to defend herself and outline her judicial philosophy. After that, if they choose to oppose her, at least it will be based on facts, rather than foreboding. Doesn’t seem like a tough decision, does it?