BUSH’S NEXT NOMINEE
By Isaiah Z. Sterrett (10/28/05)
AS WE SIT ON tenterhooks waiting for President Bush’s new Supreme Court nominee, it is important that we recognize Harriet Miers for her grace and dignity. Though I, like many others from all parts of the political spectrum, was critical of her nomination, never did I have personal animus or distrust for her. Throughout the past few (very messy) weeks, she has conducted herself with great poise, for which she must be commended.
Let it be known, also, that my analysis of the Miers nomination was never rooted in ideology. While some, like Sen. Sam Brownback, were worried principally about Miers’ “judicial philosophy,” I was not; I was certainly concerned with Miers’ qualifications, but never with her beliefs about Roe, or anything else of similar or greater importance.
The Miers nomination, with the incredible doubt and controversy it caused, was unhealthy for America. By withdrawing her name, Miers has done a true service to the High Court and the nation at large.
What, then, will President Bush do now? What should he do?
If we accept the Coulter theory—that Bush’s nomination of Miers was a jab at the conservatives who opposed Al Gonzales’ potential nomination to the Court—we must also believe that Gonzales may well be the next nominee. I warn right-wingers now: if this is the case, disappointing as it might be, we must not complain. Miers’ questionable qualifications reflected a problem with her nomination; Gonzales’ qualifications, by contrast, are sterling. Though certainly more of a moderate than Judges Owen and Brown, Gonzales served admirably on the Supreme Court of Texas and currently serves, obviously, as Attorney General. He is absolutely qualified for the Supreme Court. If nominated, the Senate should (and likely would) confirm him.
Perhaps the principal obstacle to Gonzales’ potential to be nominated is his gender. However, assuming Bush has no problem nominating a man, conservatives would clearly much prefer Samuel “Scalito” Alito of the Third Circuit. J. Michael Luttig (Fourth Circuit) would also find easy favor among Republicans. Another choice, though obviously the least viable of the three, is Judge Thomas B. Griffith. Though he’s only served on the D.C. Circuit for a few months, he was confirmed with little opposition earlier this year. He is fairly young and a graduate of UVA Law. He also served as general counsel to the U.S. Senate.
Among women, the obvious choices (and strongest choices) are Priscilla Owen and Janice Rogers Brown. If Bush’s objective is to steer clear of conservative opposition, he could do so by nominating either of these magnificent Judges. If, however, Bush remains interested in a female non-judge like Miers, an acceptable choice would be UVA Law Professor Lillian BeVier, cited recently by National Review Online as a talented member of the Federalist Society. Though probably the least qualified candidate noted here, her legal talent is obvious.
What Bush must not do, regardless of whom he chooses, is worry about Democratic opposition. Republicans are the majority in the Senate because Americans, at this point in history, prefer the GOP to Democrats. As a result, Republicans should control things. This is what democracy is. If President Clinton had been concerned with satisfying the Republican Party, Ginsburg and Breyer would not sit on the Court today; Bush must be similarly bold.
As for the “Gang of Fourteen,” they’re irrelevant. They didn’t make a dent in Roberts’ approval. Also, to state the manifestly obvious, fourteen, though a potentially significant figure, is not equal to fifty-one. They do not constitute a majority.
Washington expects a new nominee within the next several days, and this is very positive. Sooner is absolutely better than later on an issue so impacted by timing as this. The country should be thankful that Justice O’Connor is willing to sit on the Court for as long as it takes to find and confirm her replacement.
© Copyright 2005 by Isaiah Z. Sterrett
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