October 28, 2005
A pyrrhic victory for opponents of MiersBy Rick Moran
The withdrawal of Harriet Miers from her nomination as Associate Justice of the Supreme Court of the United States was due in no small part to a tiny, but very influential group of conservative writers and thinkers. They viewed the nomination of the President's personal lawyer as a betrayal of both conservative principles and the President's own election year promise to nominate strict constructionists to the high court. And now that these advocates have succeeded, the question must be asked of them: What have you gained?
The President has been humiliated and weakened. Democrats have been strengthened and emboldened. The conservative movement is in disarray. And the chances of actually confirming one of their favorites — either Judge Janice Rogers Brown or Priscilla Owen — are about as likely as my pet cat Snowball being capable of reciting the Gettysburg Address.
In fact, I am hard pressed to think of anything the opponents of Miers have gained either for themselves or the conservative movement. Putting on a brave front and declaring that the withdrawal of Miers is a victory for conservative principles is wishful thinking. A fat lot of good those principles will do you when the fallout from this Presidential humiliation depresses turnout in next year's election and hands the Senate to the Democrats. Of course there are other factors at play when it comes to elections but for good or ill, the base of evangelical Christians who have been the President's strongest supporters — and the most difficult voters to get to the polls in the first place — were the biggest and most enthusiastic supporters of the nomination. They may decide that their interests lie elsewhere on election day.
I can understand the comeback from Miers' opponents that the President himself is to blame for nominating her in the first place. There is much truth in that statement, as I devoutly wish the President could have seen his way clear in nominating a Brown, an Owens, or a Luttig. Any of those worthies would have been a fine choice for conservatives. Such a selection would have been praised and eagerly supported by the very same folks who opposed the Miers nomination.
But politics is the art of the possible. I daresay that prior to the Miers nomination it would have been a bruising, uphill battle to get 50 votes for one of those nominees in the Senate. And, since it is extremely likely that the Democrats would desperately oppose the nomination of any conservative of that stripe given that their base would be insistent on countering any move that had the slightest chance of putting a Justice on the Supreme Court who would tip the balance against Roe v Wade, the only option available to the Republicans in the Senate would be the use of the so—called 'nuclear option' to break a left—wing filibuster.
Would Majority Leader Frist have the 51 votes necessary to break the log jam? If he couldn't get the caucus to vote for it last May prior to the deal on lower court nominations made by the so—called 'Gang of 14,' how could they possibly believe that Frist would have the votes now? The President is weaker. Republicans are weaker. And we're that much closer to the 2006 mid terms. Every poll taken on the use of the nuclear option has shown a clear majority of Americans opposed to it. And it is not at all clear that Republican moderates like Olympia Snowe, Susan Collins, Lincoln Chaffee, and others wouldn't oppose both the nomination of a Pro—Life candidate and the use of the nuclear option to end any filibuster.
Now the withdrawal of Miers has made the nomination of any strong conservative extremely problematic. Democrats smell blood in the water and, given the President's weakened position, would feel no compunction about a filibuster, daring Republicans to break it. There is little doubt that the left—wing base of the Democratic party would hold their Senators' feet to the fire in order to prevent at all costs the nomination of a Supreme Court Justice who would vote to overturn Roe. It is the Ur issue for almost all the interest groups who spend so much in 'independent' ads on behalf of Democrats.
And yet, the Miers opponents have not seemed to grasp the fact that by opposing her nomination and now causing her withdrawal, it has cut the legs from underneath the President and the party at a crucial time. Is there much doubt as to the timing of Miers' withdrawal what with the Special Prosecutor's indictments coming today? The President, as all Presidents must do, has cut his losses by accepting (or asking for) the withdrawal in order to clear the decks to face what is going to clearly be the crisis of his Presidency. These indictments will dominate the news for weeks. And if what I've heard coming from Administration surrogates over the past few days about how the charges will not be serious, that the crime of outing a covert CIA agent has been proven wrong, then the White House is seriously underestimating the impact these indictments will have on voters.
Fairly or unfairly, Republicans are in no position to talk about perjury being an inconsequential criminal act. No matter the whys and wherefores of the charges, the American people would see any such effort by Republicans to paint the transgressions of Libby, Rove and the rest as a case where 'everybody does it' or worse, 'it's not that serious of an offense' as rank hypocrisy given the Clinton troubles.
The President may have lanced a boil on his Administration by killing the Miers nomination but at what cost? Given that the nomination of a strong conservative is not in the offing, who are we likely to get?
It would have to be someone who has already been vetted for the high court since the White House plans on announcing another choice as early as this weekend. And like it or not, the demands of 'diversity' on the court by both the press and the Democrats resonates with a majority of Americans. Plus, it is apparent that the President would love to nominate the first Hispanic Justice. If not a woman, then how about Attorney General Alberto Gonzalez?
These same conservatives who opposed Miers have largely made it clear that Gonzalez would be unacceptable. The Attorney General supports affirmative action and is identified as a moderate on some social issues. Sound familiar? If you thought you heard the same things about Harriet Miers you are correct. Gonzalez would be grilled mercilessly by Democrats on the Judiciary Committee over the so—called 'Torture Memos' where, in the first days of the War on Terror the Administration was groping for a policy on detainees and the memos offered options and opinions on what was legal and what should be done. But in the end, like Justice Roberts, Gonzalez may be able to garner enough Democratic votes to kill any possibility of a filibuster.
This is what the President needs at this moment; a slam dunk, fairly easy win. Conservatives have stepped up the rhetoric over the last 24 hours and seem eager for a fight. But did it ever occur to them that maybe the President isn't quiet as enamored of the idea of going to war with the Democrats in the Senate? Perhaps the President is interested in getting some of his dormant legislative agenda enacted for this term? Any long, drawn out fight in the Senate over a Supreme Court nominee would derail the efforts to reform social security, enact tax reform, or any number of other issues near and dear to the President's heart.
The clock is ticking on the presidency of George Bush. I'm sure he is painfully aware of that fact. The derailment of the Miers nomination has speeded up that clock which is now ticking toward a day when the President's power to affect that national agenda is severely limited by his lame duck status.
While the President's troubles are not all of their doing, the opponents of the Miers nomination have been most unhelpful. And the fact that they have gained little but ideological satisfaction from their actions makes me question whether or not they truly realize the damage they have done to the Presidency of a man they still profess to support and admire.
Rick Moran is a frequent contributor and is proprietor of the blog Right Wing Nuthouse