As most have figured out in the past few weeks?among them George Bush and his strategy team?there are better Supreme Court nominees than Harriet Miers. However, her nomination was not the greatest of my worries; Harriet Miers's nomination to the highest court in the country represents to me the pinnacle, or more appropriately, the abyss of what has become a potentially injurious trend in the American political system.
The vulnerable position held today by the Bush administration directly influenced the choice of a Supreme Court nominee who in the past and under different standards would never have been chosen. With Miers withdrawn, Bush is now under even greater pressure to nominate a confirmable candidate, and I am sorry to say that this candidate will likely be another Harriet Miers.
Ever since the failed nomination by Ronald Reagan of Robert Bork, the paper trail has unfortunately become a primary criterion of American presidents in choosing candidates for the Judiciary. As a result, candidates whose political positioning is less clear are more attractive, giving their opposition less ammunition in hearings. This tactic, however, is problematic, because it has been known to backfire. No one should be more cognizant of this than W, whose father is not so proudly responsible for David Souter, whose less than steadfast conservatism has proven this point, and aggravated a paranoid right wing in the process.
Miers's questionable record and qualifications spoke volumes about the tenuous position held by the Bush administration. Bush's nominations are not only important to the way the Court rules for the next few decades, but because of the administration's extraordinarily low public image and the upcoming midterm congressional elections in which the entire House and a third of the Senate seats are up for grabs, Bush is between a rock and a hard place.
In losing the Miers nomination, Bush has already expended a great deal of political capital, and finding a viable replacement could prove to be more difficult than pushing a Miers confirmation. By showing his hand with his use of the strategy of choosing politically ambiguous nominees, Bush has not only alerted the Left to look out for weak candidates, but more importantly, he has alienated his own conservative power base. It is incredibly significant that the majority of the attacks on Miers came from the right, because it demonstrates the reality that when it comes to judicial nominees, the radical Right won't settle for a moderate, even for the sake of a painless confirmation.
This leaves Bush in a nearly impossible quandary. His go-to option promising an easy confirmation just got shot down, and you can bet that conservatives and liberals alike will be looking for another Harriet Miers by any other name. He lacks the influence and unquestioned control of the Senate Judiciary Committee and Senate itself to nominate an extreme conservative and have any real hope of coming away with another justice. His only workable option is to nominate a candidate whose credentials as a thoughtful judicial figure respectful of precedent impress Senate Democrats, while also stressing a conservative philosophy. This is the formula that worked for John Roberts; he performed extremely well in hearings and proved to the Democrats that he would be a good justice and that he would not overturn Roe v. Wade, making his conservative leanings easier to swallow.
Were he to nominate a true female conservative to the bench?someone with a proven judicial record, such as Edith Brown or Edith Clement of the 5th Circuit Court of Appeals, he could maintain his stalwart support from the right wing, especially the conservative Christian power base the GOP depends on. This nomination would draw no flak from the right, but would undoubtedly run into strong opposition from Senate Democrats and give that party a bit more ideological momentum going into the congressional elections.
The course Bush took with Miers was to nominate a candidate whose conservative record is unimpressive, in a bid to take the wind out of the Democratic sails and hold on to the influence he is in danger of losing. He took the support he typically has from the right for granted and took a considerable hit for doing so. His only recourse at this point is to propose a nominee conservative enough to appease the right and smart enough to be tolerated by the Left?a John Roberts clone?
The Miers debacle and resulting trauma of a replacement nominee will inflict a tremendous political cost that will have Republican members of Congress cursing his name as they struggle to maintain their seats in the most important round of congressional elections in decades. However, the ramifications of Bush's next nomination could carry far past his administration and the balance of power in Congress. It is easy for me to write that he needs to nominate a real conservative regardless of the resulting fight, because I don't have to worry about re-election, but the gravity of the trend toward weak candidates necessitates a change in the way nominations are made. To dare dilute the eminence of the Supreme Court of the United States by nominating a candidate on the grounds of political expedience is not just troubling, but wholly indefensible.