What was Bush thinking?
By Ryan Walsh (10/16/05)
With the nomination of Harriet Miers to the Supreme Court has come great confusion and angst among conservatives.
What was Bush thinking? Circumstances have endowed him with a rare opportunity to reshape the jurisprudential mold of the Supreme Court for decades, but he has squandered it in the name of cronyism. With Roberts, we got one of the best, most intelligent appellate lawyers in the country. With Miers, we got the former head of the Texas Lottery Commission.
In effect, the President has snubbed the conservative legal movement, which has spent decades raising crops of undoubtedly well-qualified and brilliant jurists. True, getting a Judge McConnell or a Judge Brown confirmed would be an unquestionably more difficult undertaking. But Bush has never cowered in the face of a political challenge before, why would he crack now? Conservatives were armed and ready for the judicial slugfest of the century, but they were sorely disappointed.
Even worse, Miers puts the “stealth” in “stealth nominee.” Her accomplishments are few and unimpressive, and her jurisprudence is unknown. Bush said he would nominate a jurist in the mold of a Scalia or a Thomas, but can his supporters take that guarantee to the bank? Recent history suggests not. The Reagan administration assured conservatives that both Sandra Day O’Connor and Anthony Kennedy were dyed-in-the-wool strict constructionists, and George H.W. Bush is still kicking himself over David Souter.
So why would Bush lay down and pick someone like Miers?
As Thomas Sowell put it in a column last week, Bush was forced to accommodate the pusillanimous Republican majority in the Senate. “When it comes to taking on a tough fight with the Senate Democrats over judicial nominations,” Sowell explained, “Senate Majority Leader Bill Frist doesn’t really have a majority to lead.”
Before Bush even named Miers for the seat, cowardly Republican senators like Arlen Specter and John Warner were already warning him to not nominate someone more conservative than O’Connor. It was a clear case of what Sowell calls “a familiar Republican strategy of pre-emptive surrender.”
Remember the “Gang of 14?” It was the bipartisan group of senators that supposedly averted the judicial filibuster “crisis.” According to their agreement, the use of the filibuster would end provided the president refrained from nominating an “extreme” jurist. The same Gang of 14 then voted up-or-down on Janice Rogers Brown, Priscilla Owen, and Bill Pryor. By doing this, they acknowledged, implicitly if not explicitly, that Owen and Pryor were not extreme. Why wouldn’t Bush pick one of them? After all, the Gang of 14 is obligated by principle to allow an up-or-down vote on both.
Yet, Bush and Rove know that the Senate doesn’t operate on principle. Most likely, everyone has forgotten the Gang of 14’s agreement, so claming it as some sort of precedent is pointless.
Considering all of this, we have little choice but to trust the President that Miers is an originalist. Let’s hope he’s right.
(Printer friendly version) Email: Ryan Walsh
