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Bring on the Mother of All Judicial Battles

Some after-action comments on the Harriet Miers withdrawal … and then it’s time to move on.

This was never really about Harriet Miers, her gender, whether she was “qualified,” what schools she went to, whether she was a “conservative,” or any of the other blather drummed up by the media.  It was about a missed opportunity.  It was about the fact that there were so many better candidates for the job.  It was about not taking any chances in filling the “swing” seat on the Supreme Court of the United States.

In that regard, the President simply screwed up.  As Dick Cheney would say, “Big time.”  It happens.  The man is human, after all.  He now gets to take a “mulligan.”  Let’s hope he’s learned from this mistake and nail the next one straight down the fairway.

In this instance, unlike the “borking” of Judge Robert Bork or the “high-tech lynching” of Clarence Thomas, the system worked.  The President nominated.  The Senate was prepared to give the nominee a fair hearing, followed by an up-or-down vote.  The media reported.   The citizens had their say.  And the nominee made her decision.  This wasn’t a breakdown in the system. The criticism of Miss Miers was, for the most part fair and deserved.  No one went rooting through her trash cans to see what movies she’d rented at Blockbuster.

As for Harriet Miers, she’ll now enjoy great respect rather than derision by her fellow conservatives for doing the right thing — for the President, for the Republican Party, for the conservative movement and for the country.

Her decision had to sting, but in the long run, she’ll be a much bigger winner for it.

As for the Senate, especially Republicans in the Senate, they get to avoid a messy intra-family confirmation battle in which the nominee and the President were likely to be embarrassed.  They also avoided what would surely have been a gut-wrenching vote in which they would have had to choose between their President and their conservative base of voters.  You could almost hear the collective sigh of relief from the Senate chamber this morning.

As for the Democrats: Bravo, bravo.  Collectively, they did what heretofore no one would have believed possible: They kept their big, fat mouths shut.

They adhered to the age-old wisdom that when your enemy is committing suicide, don’t interfere.  The true danger in this entire episode was that the left would come out swinging with their usual anti-conservative pabulum and the right would have felt obligated to come to her rescue. The Democrat Party discipline in this whole matter is much to be admired.

But the biggest winners of all are the grassroots conservatives and conservative organizations who have been toiling in the trenches at least since the Bork debacle in an effort to remake the nation’s highest court and bring it back to its originalist roots as established by the Founders.  This was a huge win for the right no matter how you slice it.

Me, I’ve been a critic of much of the Bush administration dating back to the days when he first started dissing us Reaganites with his “compassionate conservative” crud — followed by No Child Left Behind, amnesty for illegal aliens, McCain-Feingold, spending through the roof, that prescription drug benefit, the highway pork bill, etc., etc., etc.

So it was no big deal for me to come out opposed to this nomination just hours after it was announced.

But a lot of other conservatives and conservative leaders with close ties to the President and the White House — especially many social conservatives — went WAY out on a limb in standing firmly against the Miers nomination. They are to be applauded.  It was a very tough and painful decision for many of them to make.  But when push came to shove (and the White House did a lot of pushing) the collective movement as a whole — social conservatives, economic conservatives and libertarian conservatives — chose principle over blind partisan loyalty and they should be proud and lauded for their actions.

There remains, of course, two big dangers here.

1)  The President gets his nose bent out of shape and decides to appoint someone to fill this seat who is even WORSE than the Miers nomination.  He could still try to nominate his friend and current Attorney General Alberto Gonzales.  Gonzales, at least, has a better resume than Miers, but his nomination would rile up social conservatives even more than Miers did.  A Gonzales nomination would be a smack in the eye which would likely result in considerable GOP losses at the ballot box a year from now.  I don’t think the President will make this same mistake twice.  But you never know.

2)  The President could next nominate the type of high-quality conservative candidate which the right would salivate over and the left would have a conniption over, setting up the “Mother of All Confirmation Battles.”

Truth be told, that is exactly what should happen.

It’s time to right the wrong that was done to Judge Bork.  It’s time to use this “swing” seat to right the direction of the Court. A court which reaffirmed special, rather than equal, treatment of minorities in college admissions.  A court which said the government can take away your property and give it to someone else for economic reasons.  A court which upheld a congressional law infringing on citizens’ right to free speech 30 days before an election. A court which is out of control and out of line.

If the President does, in fact, nominate someone like that, the left will be loaded for bear.  They’re gonna kick like mules and bite like crocodiles.

It’s gonna be an old-fashioned bar brawl, complete with mud, blood and beer.  Oh, what a glorious constitutional fight it will be.

But there’s no guarantee the right will come out on top of such a fight.  We still have a lily-livered Senate peppered with faux-Republicans such as Lincoln Chafee, plus the infamous Gang of 14.  The right is going to need to put this Miers mess behind them, regroup, reunite, rearm and gird their collective loins for a knock ‘em down, drag ‘em out bench-clearing brawl like there’s no tomorrow.

Because there isn’t.

Knives or guns?

Written By

Mr. Muth is president of Citizen Outreach, a non-profit public policy advocacy organization in Washington, D.C. The views expressed are his own and do not necessarily reflect the views of Citizen Outreach.

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