27 October 2005

Prophet Wrong on Miers

When Harriet Miers was nominated I said:

I have a hard time imagining that she will not be confirmed, absent a remarkable new development. Liberals can hope that her experience breaking gender boundaries, and the reality based existence that private private attorneys have to live, will give her at least some balance in her experience. She has less of a hard core conservative public record than almost any conceivable Bush nominee, and is rumored to have the advanced O.K. of leading Democrats and Republicans in the Senate. She could very well be a Thomas/Scalia conservative deep down. Republican lawyers for big corporations in Texas are not known for their liberalism, and her elevation a couple of years ago to be a deputy advisor for policy in the White House suggest that her views must closely align with those of the President. But, the Senate will never prove it and will likely not even get any meaningful examples of her White House work product in the confirmation process. If the Senate can claim ignorance of Roberts' strong political biases, they won't find her's. The only way her biases could easily come out is if attorneys who practiced with her reveal them. Those who have worked with her, like David Frum, believe that there are no such skeltons in her closet.

The group of fourteen who signed the deal stating that they would only filibuster in "extraordinary circumstances" are unlike to oppose her. And, absent a filibuster, a party line Republican vote, with some Democratic support as well, is virtually assured. In all likelihood she will receive even more votes in the Senate than the 78 that Chief Justice Roberts received.

Well, egg on my face. Miers has withdrawn her candidacy for the post of Associate Justice to the United States Supreme Court in the face, primarily, of opposition from conservative Republicans. Democrats largely took what is called the "popcorn strategy" in regard to the nomination, sitting back and watching Republicans fight over it.

I don't think that I pegged the liberal side of the reaction wrong, but I did grossly underestimate how willing conservative Republicans were to buck the President in order to obtain their long sought after prize of a proven hard core conservative to replace moderate Justice O'Connor.

Honestly, for that reason, I'm not optimistic that the Miers debacle will ultimately help Democrats. Yes, Justice O'Connor will likely stay on the court six months or more longer than had been originally anticipated, which will likely help progressives on a handful of cases, some of them important ones. Yes, this nomination is yet another defeat for the Bush Administration, and that is also generally a good thing, as each defeat reduces the administration's clout in all things. But, the next nominee is likely to be far more reliably conservative than Miers and that will be a very high price to pay indeed, unless that nominee can be successfully filibustered. On that count, I am not optimistic.

A second defeat for the President in a Supreme Court nomination would be a coup for Democrats, but honestly, I just don't see how the Democrats are going to be able to pull together to make it happen unless the President nominates someone who is such a firebreather that moderate Republicans won't hold their noses and support that candidate. We will know soon enough.

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