October 27, 2005,
No conservative should be in a celebratory mood now that Harriet Miers has withdrawn her nomination. For one thing, reasonable conservatives who considered her unqualified for the Supreme Court conceded that she has had an accomplished career and that she has served the president loyally and, for the most part, well. Gloating would be unseemly. For another thing, the object of conservative agitation against Miers was to get a solid justice confirmed. So the conservative opponents of her nomination have not yet won a victory.
Still, today is the best day Republicans have had in some time. It was clear almost from the beginning that the president had made a poor choice, and has been clear for more than a week that withdrawal was advisable. An ill-considered nomination had reached an impossible pass. One day would bring news suggesting that Miers would be (or at least vote like) a judicial conservative. The next would bring news suggesting the reverse. The net effect was to leave both liberals and conservatives concerned about both the substance, and the muddle, of her views. Even minor mistakes in her answers to senators' questions were being judged harshly. And her meetings with senators were not going well.
Yet some observers especially those well-disposed to Miers's nomination still insisted that the president would "never back down," even to correct a mistake. These observers gave the president, and Miers, too little credit. The president is strong-willed, but not willful.
But presidential mistakes have consequences that cannot be simply erased. If President Bush now nominates someone whom most conservatives can support, as he should, then Bush and the conservatives may, together, win the nominee's confirmation. But their chances of jointly succeeding were better immediately after the confirmation of Chief Justice John Roberts than they are now. The Democrats will insist that the far Right has forced a nominee beholden to it on a weak president.
But taking on the Democrats, even Democrats armed with that argument, still seems the best option. Republicans still have a majority of the Senate. If Democrats mount a filibuster, Republicans should be able to break it one way or the other. Republicans will need only two members of the "gang of 14" who made the filibuster deal to prevail.
While parts of the public argument over the Supreme Court will favor each party, we think the balance tips toward the Republicans. The public favors Roe (even if it misunderstands it), likes the sound of the "right to privacy," and will worry about the notion that a judge would dismantle the welfare state. On the other hand, the public also sides with conservatives on crime, on church and state, on partial-birth abortion, and on marriage, and, perhaps most importantly, favors "conservative" over "liberal" judges. Values issues generally benefit the Republicans, as we saw during the last election especially when the Democrats seem to be intolerant of conservative values, as they would almost certainly both seem to be and be during a battle over a conservative Supreme Court justice.
believe that the president will pick
someone unacceptable to
conservatives out of spite.”
It follows that President Bush should pick the most qualified and confirmable conservative he can find male or female. Such a fight could be the way out of the president's current trough.
We do not for a moment believe that the president will pick someone unacceptable to conservatives out of spite. He did not pick Miers in that spirit; as we said on the day of her nomination, we thought it was a good-faith, though mistaken, choice. Bush and conservatives on both sides of the Miers debate should now let bygones be bygones, and stand together in the fight they will now almost certainly face.