Miers Withdraws Under Pressure

October 27, 2005

Miers Withdraws Under Pressure

What Conservatives Now Owe This President

When Harriet Miers was nominated,

David Frum spoke for most nervous conservatives at. http://frum.nationalreview.com/archives/10032005.asp

An excerpt:

“I worked with Harriet Miers. She’s a lovely person: intelligent, honest, capable, loyal, discreet, dedicated … I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or–and more importantly–that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.”

On October 3rd I predicted confirmation and noted that:

Two right-of-center jurists have departed and two right-of-center jurists will fill their places. Roberts is every bit as conservative as the former Chief, but a better consensus builder. Miers will be tougher than O’Conner but possibly another swing vote on a few issues not of strong concern to W. I understand that she is a religious conservative and pro national security and pro business. Coming from outside the court is an advantage because she hasn’t been acculturated. All that said, she is a bit of a cipher to everyone… except the Administration inner circle.

And I went on to add:

To date, President Bush has not made any serious selection errors in his judicial nominations. Given such a well honed vetting process, I doubt if he’s slipped up on this one. What this suggests to me is that Bush had once again made the policy calculation paramount over confrontation. He seeks a slam dunk confirmation, accomplishment over symbolism. He’ll undoubtedly get it.

Whoops!

Then I added something that I still find very plausible:

The real question is why W took the easier path, another stealth candidate, avoiding a fight? Not sure. But I think Frum and the other conservative writers who aren’t in close touch with the Senate are overestimating the Republican support for a really controversial nominee at this time. It is reasonable to fear that the Pres. is just too tired for another fight, but I propose a different theory. He knows something we don’t, to wit: that there is another vacancy in the queue, one of the other justices, someone who might not want the vacancy to be filled by Hillary and won’t want to stay another decade if she is two term. Assume a signal reaches Cheney. In this view, W is counseled to save the big guns for the real fight, the Fifth Vote. This is exactly the kind of stuff you can’t even leak.

What Probably Happened Here

I am personally persuaded that “W” wanted a quick, non-controversial confirmation, probably for reasons like those in my last speculative paragraph. And it now seems evident that the president was deliberately misled by Nevada’s Harry Reid, the Senate democratic leader. “W” tends to trust on first impressions. Reid seems to have played the president and almost created a deadly wedge issue between the secular “hard” conservatives and the evangelical “soft” conservatives. The president’s political calculation and head count were probably skewed because of Carl Rove’s distractions related to the pending Grand jury decision. All in all, it was a disaster in the making.

Having damaged this president in time of war, the republicans in the Senate owe “W” a quick and decisive confirmation on the next Supreme Court nominee, using the “nuclear option” to cut off a filibuster if necessary. For his part, the president is constrained to pick a working jurist for whom the conservatives can generate the discipline and enthusiasm needed for confirmation without giving the left the ammunition to move wavering moderate and liberal republicans off the reservation. This was the battle the president sought to postpone. So much for stealth.

JBG

This piece was first posted on “The Policy Think Site”

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Copyright © 2005 by Jay B. Gaskill

For permission to copy, publish, distribute or print, contact:

Jay B. Gaskill, attorney at law, via e mail: response@jaygaskill.com

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