October 21, 2005,
Five days into White House “qualifications week” in making the case for Harriet Miers her nomination is looking weaker rather than stronger. No matter how many times Scott McClellan says that she is “extremely well qualified” it doesn't make it so, especially when she makes basic constitutional flubs on her Senate questionnaire and is leaving senators singularly unimpressed during her Capitol Hill visits.
The Miers nomination has already done harm to the president politically by dividing his base, and promises more damage in the weeks ahead. The acrimony among conservatives is likely only to get worse, since this nomination is so rich in embarrassments. And the Senate GOP will be dragged into a bloody fight with Democrats over the nomination. There's nothing wrong, of course, with fighting with Democrats, but it makes little sense to have a knock-down-drag-out over a nominee who has thin qualifications, an uncertain judicial philosophy, and was picked partly to avoid such a fight.
It now looks as if the confirmation hearings will be the very fight over judicial principles that conservatives have long wanted, but the White House has tried to sidestep. Instead of having a nominee as equipped as, say, a Judge John Roberts as their champion, conservatives will watch the case be made by Miers, who may not even grasp all the principles or believe in them. If she implodes at the hearings, it will not just be her personal embarrassment. She will set the conservative cause back dramatically. Surely, she will be coached to say all the right things initially, but she has no depth in conservative judicial philosophy. If she wilts under questioning, the conventional wisdom might be that the principles themselves were indefensible.
There is no good reason to keep going down this road other than the sheer stupid force of inertia, i.e. this is the nomination, so we're stuck with it. Indeed, if Senate Republicans and conservative lawyers were being candid about their views of this nomination, it probably would already have sunk. This moment calls for leadership from Republican senators, who should go to the White House and insist that this nomination will not work and should be withdrawn. The White House is too insulated and reflexively defensive (note President Bush's pique yesterday when asked about criticism of Miers) to figure this out on its own. Is this a difficult message for anyone to deliver? Yes, but that's why we have senators and not White House automatons occupying the upper chamber of Congress.
Conservatives will have long memories about how senators act in this crucial period. Any Senate Republicans who want people to listen when they run for president in 2008 and tell GOP primary voters how seriously they take the task of transforming the Supreme Court by placing top-notch conservative jurists on it had better be heard from now. Will Sen. George Allen cross the White House, when it still has the juice to threaten him? Will Sen. Sam Brownback, a key member of the Senate Judiciary Committee, show the leadership his admirers expect? Can Sen. Bill Frist break with the White House on something highly important and controversial besides stem cells? Can Sens. John McCain and Chuck Hagel be mavericks when it might do their party and one of its most important causes some good?
to keep going down this road
other than the sheer stupid force
It is understandable that Republican senators want to be loyal to an embattled administration. But what the president needs most right now is friends, friends who will do him the service of telling him the truth, even when it’s inconvenient. Bush's stubbornness and willingness to stick by associates can be valuable qualities, but not when they prevent him from realizing a mistake or seeing what an awful position he has put his loyal White House counsel in.
It's not as if Republican senators haven't broken with the White House on other matters, from the highway bill to interrogation policy. If nothing else, their sense of self-preservation should be at work, since a divided and embittered GOP base will spell trouble for them in the 2006 mid-term elections.
Some GOP senators wonder how they can justify having voted for Ruth Bader Ginsberg and Steven Breyer, then not support Miers, who will at the very least be a more conservative vote than those two. This is backwards. Republican senators supported those two justices (mistakenly, in our view) because they calculated Ginsburg and Breyer were the two most qualified, least objectionable justices that a Democratic president could nominate. But now we have a Republican president and a Republican Senate. That president owes the same duty to his principles and his supporters that Bill Clinton owed to his. But while Bill Clinton chose highly competent liberals, George W. Bush has now chosen someone whose conservatism and whose qualifications are in doubt.
A Miers withdrawal will stop the bleeding. It will seem a blow to the White House at first, but soon enough people will forget how many people remember Bernie Kerik? and the focus will become the next nominee. If that nominee is of the caliber and has the beliefs we have come to expect from other Bush judicial nominees, conservatives will rally around him or her, and the White House and its allies can unite in a clear fight to transform the Court.
But, first, GOP senators have to go to the White House.