October 13, 2005

On Withdrawing Miers

Marc Comtois

Peggy Noonan has called for President Bush to withdraw his nomination of Harriet Miers (or for Ms. Miers to withdraw herself). While she believes such a move doubtful, she does offer a forecast of what would happen next.

The White House, after the Miers withdrawal/removal/disappearance, would be well advised to call in leaders of the fractious base--with heavy initial emphasis on the Washington conservative establishment--and have some long talks about the future. It's time for the administration to reach out to wise men and women, time for Roosevelt Room gatherings of the conservative clans. Much old affection remains, and respect lingers, but a lot of damage has been done. The president has three years yet to serve. That, I think, is the subtext of recent battles: Conservatives want to modify and, frankly, correct certain administration policies now, while there's time. The White House can think of this--and should think of it--as an unanticipated gift. A good fight can clear the air; a great battle can result in resolution and recommitment. No one wants George W. Bush turned into Jimmy Carter, or nobody should. The world is a dangerous place, and someone has to lead America.
The fear among conservatives (at least this one) is that in an attempt to avert a partisan political fight over a conservative judge with a paper-trail, he has instead instigated a political fight between he and his base and may have broken the last, crucial bit of the covenant he had with conservatives. Without this political base, how will George Bush accomplish the rest of his agenda for his final term?

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As an attorney with some constitutional law experience, I just don't understand what Pres. Bush was expecting with this nomination.

There are rumors that some of his "first choice" candidates withdrew because of the vicious confirmation battle anticipated.

I am convinced that we do not now know (and may not for many years) all of the background to this decision.

I think withdrawing the nomination at this point is not wise. Let her go through the Senate hearings. They will either confirm all of the conservative angst or not.

Posted by: brassband at October 13, 2005 2:15 PM

The Federalist society is too politically charged but the NAACP is not comments that Drudge is reporting has shifted me to the withdraw the nomination position.

Posted by: Andrew at October 13, 2005 3:08 PM

At this point, she's already damaged goods, and we haven't had a minute of hearings. If President Bush doesn't have his most consistent and loyal supporters backing him on this one, he really doesn't have anyone to lean back on during the confirmation process. I'm sure he could push the nomination through the Republican majority Senate by twisting arms on the right (ex. the Medicare drug benefit). However, that would only further weaken his support among the core of the GOP, and tend to breed resentment among basically everyone. No one likes feeling bullied, even Republicans. Also, I believe that Karl Rove has more important things on his plate to deal with than just the future of one Supreme Court nominee.

As far as I can tell, the rational of nominating Mrs. Miers, other than being a woman, was probably to avoid a confirmation fight with the Democrats, at a time when President Bush is somewhat politically weakened. This breaks a cardinal rule from Politics 101: don't make a long-term decision based on a short term situation. The problem is, in making this choice, he's gone so far to please the Dems (ex. Harry Reid), that he's essentially picked a fight with his base. He simply cannot count on Democratic support to get his nomination though! He's obviously has been getting some very bad advice, as I'm sure he did not come to this decision about her singlehandedly. She was on no one's short list of candidates. This was totally unnecessary.

At this point, it'd be better in the long run for President Bush to cut his losses, and nominate someone who truly "is in the mold of Scalia and Thomas," and more importantly has a record to back it up. Altough his polls are in the dumps now, a truly good pick can only help solidify his support. I'm sorry, but "trust me on this one" just isn't going to cut it. This is not personal, and those on the right are not being disloyal for speaking up about this. Assuming he is sincere about her, and I truly believe he is, has "trust me" worked for us during any of the last four Republican administrations? Nooooo!

Posted by: Will at October 14, 2005 12:59 AM


I am coming around to the view that Pres. Bush's top choices either backed out, bombed in their interviews, or had vetting problems that he anticipated would sink them.

This is the only sensible explanation for this choice.

I do not think that he chose Miers to placate the Dems. I think he had some real problems with all of the names that are "hot" in conservative legal circles.

Withdrawing Miers now and replacing her with a red meat conservative will not work. The Sen. libs are primed for a fight and would "Bork" any such choice. We would hear lots of talk about how much better Roberts and Miers are, the new candidate would be made to look like a demon by comparion.

I think Miers is going to have to go through the process. She's down three games to nothing and several runs behind in the bottom of the ninth. . . . but last year the Sox came back from that position and won it all . . . maybe Harriet can do the same. (Sorry, C.J. Roberts made these baseball analogies acceptable).

Posted by: brassband at October 14, 2005 6:12 AM

I am going to partially agree with you on something you said, "I think he had some real problems with all of the names that are "hot" in conservative legal circles."

It is likely that a few of the people that are well known in conservative circles (esp. on the female side of things) do indeed have some baggage, either personal or prior dealings in private life, that could preclude them from being good Supreme Court nominees. Just being a conservative, is not in and of itself a qualification -- though as part of an overall package, it doesn't hurt! In theory, the candidates are thoroughly "vetted" prior to being announced publicly.

Presumably, one "plus" for Miers is that she almost certainly was vetted prior to taking the position in the White House as President Bush's personal counsel. Anyone working in the White House or for the President himself, has to undergo considerable FBI background testing. However, that being said, such background testing does not get into the realm of ideology.

I'm not suggesting withdrawing Miers, for the purpose of nominating a "red meat" conservative. However, I am suggesting that someone be nominated who has a demonstrable public track record that clearly shows a predisposition against judicial activism would be more appropriate.

While Mrs. Miers may be a great lady, unless she can demonstrate that she is eminently qualified for this position, and is more than just a "loyal" friend of the President, than we need to consider alternatives. I'm sorry, but this pick is too important for conservatives to leave to chance.

Posted by: Will at October 15, 2005 12:56 AM

Leonard Leo, the president of the Federalist Society who plays a largely executive role and took a temporary leave from the Society to help the administration shepard nominees, has suggested the nomination of Miers is derivative of the Senate's failure to exercise the constitutional option in the fight over appellate court nominees.

It is unsurprising given his current position that he supports Miers, but I can't credit his logic on the constitutional option. I would expect that many at the Federalist Society will be disappointed with him.

Miers two-faced treatment of the society, celebrating them in an address to one of their symposia while dissing them as unsuitable to take the field with the NAACP is typical of the weak kneed retreat everytime the Society comes up in polite discussion. I can only assume that Leo will face direct and indirect criticism from many in the Society (myself among them) when we get together in November in DC.

I share his frustration over the Senate, however that doesn't mean the President is supposed to throw in the towel. What exactly would be the problem with nominating Janice Rogers Brown and letting Ted Kennedy, Chuck Schumer and Patrick Leahy go through weeks of beating up a black woman? And, if the nomination failed, then you appoint Harriet Miers as your back-up candidate.

Maybe Brown was amongst those that failed the 'vetting' but I find that unlikely. She just went through three years of vetting by liberal proctologists looking into every cranny. It is hard to believe that they kept some deep dark secret in reserve in case she were ever nominated to the Supreme Court when they felt they could keep her off the appellate bench. It is possible that she is among those who withdrew, but my gut tells me that is not the case.

It seems more likely that the vetting she failed was the Harry Reid litmus test. Talk about Rope a Dope. Reid tells Bush he has to take off the table the three nominees who have just been vetted in a highly adversarial confirmation process - and Bush apparently concurs simply because Reid promises a filibuster (apparently in violation of the agreement of the fickle fourteen, but it wouldn't surprise me that centrist democrats who found her to be within the realm of reasonable judicial discourse only a couple months ago would suggest they didn't mean that her discourse was reasonable enough for the supreme court).

To claim that the public spectacle of the failure of a nominee like Brown would somehow cripple the administration is absurd when it is busy making like the knight of yore in Monty Python's Holy Grail. Leonard Leo and company are saying: "come back and I'll bite your kneecap off". Bush's legislative agenda is on the rocks for the foreseeable future having nothing to do with the selection or confirmation of supreme court justices. A stong nominee and a strong fight might actually reinvigorate it, although I have basically written it off.

Where the President's (and Leo's) calculations are off base (pun intended) is that his supporters would sacrifice his entire legislative agenda for a decent nomination to the court (even knowing the Senate might not be up to getting her confirmed). It is the only thing that matters to people like me who voted for him in 2004 to improve his mandate even though I didn't vote for him in 2000 and don't generally agree with what he counts as accomplishments (drug benefit, no child left behind,solicitor general consistently supported environmentalist whackos over property owners, justification for the Iraq war -- not that there is none, but it wasn't the administration's clumsy passion play). (and I don't really care except in an abstract way about hotbutton judicial issues like Roe v. Wade but he ignores some plurality of his electorate who endorsed his mandate with that in mind as well.

On top of this, even if one is worried about one's legislative agenda, and even if one thought that the second term agenda would look more like the libertarian promises that never materialized in the first, e.g. moving social security towards private accounst, on top of Reid having warned Bush off of Janice Rogers Brown (and Owens and Pryor) Reid also apparently recommend Meirs. Even if Meirs were the best choice, how strong does one look politically if the other side is leading you around by the nose. What does anyone think Social Security Reform would look like if this is the kind of relationship the President forges with Reid.

Even if this proves to be the biggest game of Brer Rabbit there ever was and Meirs is the thorn patch we would actually like to be thrown in, there is no harm, given the symbolism of this appointment, to nominate Janice Rogers Brown and then settle for Meirs. It accomplishes the same misdirection and tends to make Meirs look harmless by comparison in the eyes of liberals. Browon failes, you act like you are compromising and maybe she is attila the judge. But I highly doubt it given the examples of her writing and speaking that have surfaced.


Posted by: brian at October 16, 2005 8:45 AM
No one likes feeling bullied, even Republicans.

So therefore it is better to bully up on the President because he's only one Republican compared to the 50+ in the Senate?

Posted by: smmtheory at October 17, 2005 1:43 PM

I defending the President on the idea that the Senate sucks (pardon my colloquialism)is pretty weak. If one can explain how the Meirs nomination will make the Senate better or actually advance a useful legislative agenda, I'm all ears. But simply saying the President is no worse the Senate is not saying much.

Further, the president's main power regarding confirmation of nominees and legislation is rhetorical. The Senate does not move public opinion or speak with any kind of unison or plurality, even given its automatic division into partisan coalitionsis inward looking. Thus the Senate may respond to a flood of public opinion but it does not lead it.

The PResident must command the bully pulpit and be able to defend his selections in ways that resonate with the public in order to have any chance of success. This includes anticipating how others, including the majority on his side, will view his selections. There was no rush to make this appointment. If he needed more time to sell the idea to his own party, he should have held the nomination back.

The same people now bashing the president have regularly bashed the senate over judicial confirmations, so this is equal opportunity criticism. The president has been given a pass by his own party on some of the worst legislative policy promoted by an administration to come our way in years (no, not worse than Hilary Care but where did that go, the president used his arm twisting with party loyalty to actually pass boondoogle after boondoogle and has never exercised the veto) because the eyes were on the prize, e.g. the supreme court.

I can't credit any defense so far offered of him in regard to this appointment. Whether this was a good appointment or not, it was so poorly handled that the administration concedes they have to start over. I just believe they should really start over by nominating someone else. Of course they have made it even more complicated to get a better candidate confirmed, but if they don't want to be subjected to withering fire from there own camp they should wise up.


Posted by: brian at October 18, 2005 8:27 AM
The same people now bashing the president have regularly bashed the senate over judicial confirmations, so this is equal opportunity criticism.

Equal opportunity? Are you saying they are bashing the President because he will not give Miers her opportunity before the Senate committee and an up or down vote without filibuster?

I don't think so. The criticism isn't even of the same thing.

Posted by: smmtheory at October 18, 2005 10:50 AM