Harriet Miers did the right thing—and provided President Bush with a great opportunity—by withdrawing her nomination for the Supreme Court. Now President Bush needs to do the right thing, too, and seize that opportunity.
He now has the chance—long-sought by the conservatives who helped elect and re-elect him—to build a majority of constitutional originalists on the Supreme Court. At the same time, he has an opportunity to begin rebuilding his own political strength and the strength of his party.
To do these things, he must nominate someone who is not merely an originalist, but an originalist with a paper trail to prove it.
The Big Prize
The next Supreme Court nominee—and every Republican Supreme Court nominee after that—should be someone whose record in jurisprudential combat demonstrates that he or she has what it takes to defend the original meaning of the Constitution once on the court for a life-long term. There are many federal appellate court judges who have demonstrated their courage and their fidelity to the law by taking stands on great constitutional controversies when they knew they would be targeted for doing so by the Democrats, by well-funded liberal interest groups and by the establishment media. It is battle-scarred men and women of this type who merit elevation to the Supreme Court. And a President who was re-elected along with a 10-seat Republican majority in the Senate, while promising to name strict constructionists to the court, has no excuse for passing them over in favor of inferior candidates whose mettle is untested.
Harriet Miers must be the last Republican stealth nominee.
Yes, nominating out-of-the-closet originalists will spark an intense political battle with Senate Democrats. Yes, left-wing senators—pushed by the likes of Ralph Neas at People For the American Way—are already warning Bush not to be jerked around by the conservatives in the Republican Party.
But Bush should tell them: Bring it on! He’s ready for the fight. And he’s not going to be jerked around by the conservatives in the Republican Party—he’s going to lead the conservatives in the Republican Party.
To lead this fight and to win it, however, the President must get his White House in order. The vetting and selling of Miers’ nomination were atrocious. The White House went looking for a stealth nominee so the President would not have to battle Democrats, and they came up with a flawed nominee who put him in a battle with Republicans.
The final revelation that probably forced Miers to withdraw was a pair of speeches she delivered in 1993. The Washington Post featured them in a front-page story Wednesday and posted them on its website. These speeches revealed that when she was in her late 40s—one year before she started working for George W. Bush’s gubernatorial campaign—Miers was a liberal who defended activist judges.
In these speeches, Miers praised Ruth Bader Ginsburg, fondly quoted Barbra Streisand, and suggested that the first female President or Vice President of the United States ought to be then-Texas Gov. Ann Richards, a liberal Democrat who had delivered a scathing ad hominem attack against then-Vice President George H.W. Bush at the 1988 Democratic National Convention. The speeches also defended courts that step in and make decisions about such things as public-school funding, suggested that white jurists could not be trusted to do justice by black defendants, seemed to support Roe v. Wade, and argued that America had correctly given up “legislating…morality”—as if the laws against theft and murder do not legislate morality.
Any conservative in the White House reading these speeches would have known they could explode whatever support the nominee would have within the President’s own party. But either no conservative read them before Bush nominated Miers, or that person’s advice went unheeded.
Finally, the White House should remember Ohio. They should remember Ohio because it is the swing state that delivered re-election to Bush last year only because tens of thousands of new voters went to the polls to simultaneously vote against judicial activism by passing a state marriage amendment and choose Bush over Sen. John Kerry because Bush’s values seemed more in keeping with their own.
Clearly, the biggest prize Bush will win if he now names only demonstrated originalists to the Supreme Court will be the Constitution itself. His legacy will be: He preserved the Constitution against judicial activism. But a secondary prize—and a worthy one—will be that by fighting the advocates of judicial activism in the Democratic Party, he will reunite his own party and reinvigorate its appeal to the very swing vote that kept him in the White House in a very tight election.