The Miers debate: a stumble perhaps, but also an inevitable moment

Perhaps the political vetting was no better than the personnel vetting in the case of Miers. Perhaps there never was a cold calculation that if a Luttig or McConnell or Janice Rogers Brown were nominated, the nominee could not be confirmed. Perhaps the Miers selection was a way to avoid having to find out where the chips lay. We (and some blogosphere notables) had previously made the assumption that the Gang of 14 or the weak GOP senate sisters would scuttle a nominee with a paper trail of solid conservative jurisprudence, but how do we really know that?

If the vetting process is any indication, per John Fund, the Miers nomination was characterized by improvisation, shortcuts, and unexamined assumptions:

The Miers pick had its origin in the selection of John Roberts last July. Ms. Miers was praised for her role in selecting him and the wildly positive reaction. At that point, a senior White House official told the Washington Post that William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before, stepped in. The Post reported that Mr. Kelley “suggested to [White House Chief of Staff] Andy Card that Miers ought to be considered for the next seat that opened.” To most people’s surprise, that happened with stunning swiftness when Chief Justice William Rehnquist died Sept. 3. Judge Roberts’s nomination was shifted to fill the vacancy for chief justice, thus opening up the seat of Justice Sandra Day O’Connor. A quick political consensus developed around the White House that the nominee should be a woman.

Even though several highly regarded female lawyers were on Mr. Bush’s short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he “then directed Ms. Miers’ deputy . . . to vet her behind her back.” For about two weeks, Mr. Kelley conducted a vetting he has described to friends as thorough. It wasn’t. A former Justice Department official calls it “barely adequate for a nominee to a federal appeals court.” One Texas lawyer called by the White House was struck by the fact “that the people who were calling about someone from Texas and serving a Texas president knew so little about Texas.”

Both Fund and John Dickerson of Slate note that the White House decided early on that the O’Connor seat was a woman seat, for reasons unexplained, and perhaps on assumptions unexamined. We think it is likely that someone’s logic, perhaps Card’s, was that such a choice was a way to eliminate friction in the confirmation battle. Indeed, one only has to look at the beginning of the statement the President made in nominating Miers to see the theme of eliminating friction, the choice of a woman on Harry Reid’s list of suggested candidates:

It is now my duty to select a nominee to fill the seat that will be left vacant by the retirement of Justice Sandra Day O’Connor. Once again, I considered a wide variety of distinguished Americans from different walks of life. Once again, we consulted with Democrats and Republicans in the United States Senate. We received good advice from more than 80 senators. And once again, one person stood out as exceptionally well suited to sit on the Highest Court of our nation.

A woman, just like O’Connor. Check. No paper trail like Roberts. Check. On Harry Reid’s list. Check. An evangelical, Check. Who is personally close to Bush. Check. Hey, that’s the perfect nominee! It is certainly conceivable to us that a micro-analysis of the Gang of 14 or the 5 or so GOP sob sisters was never undertaken, once a low friction (or so they thought) nominee was identified. (This is not to say that the White House didn’t have indications from the weak-kneed folks where they might come out on a strong, well-documented conservative, but early posturing is not dispositive.)

An inevitable moment

We don’t feel that strongly about Miers, by the way. We have been for her, we have been against her, but really, in a country which is 3 to 2 conservative over liberal, this nomination is hardly the end of a road, no matter which way it goes.

The controversy over the stealth nominee versus the paper-trail conservative nominee was bound to happen. It just blossomed with the Miers nomination, and it is not going away. It is part of the growing pains of the GOP, and conservatives within the GOP, feeling that they should call the shots. You will notice on potentially divisive social issues, from abortion to illegal immigration to calling radical Islam by its name, the Bush administration has consistently gone out of its way to avoid fights and to speak in the most moderate of tones, and let the debate move along among the people. This is arguably wise policy in a country in which the MSM still have influence on the vast moderate middle. Eventually, on issue after issue, however, consensuses often form, and sometimes you may have observed that the administration’s rhetoric has then changed. This has happened on the issue of radical Islam from 9-11 to today. A change is surely coming on the issue of illegal immigration, though it has not happened yet. And the administration has just had the apparent ill fortune to have triggered the acute phase of the judiciary debate by the Miers nomination.

No one on the conservative side should be discomfitted by the emergence of these debates. They are evidence of the paradigm shift, and the difficulties of that shift, as majority opinion makes its way from the liberal consensus of two generations ago to a conservative consensus today.

One Response to “The Miers debate: a stumble perhaps, but also an inevitable moment”

  1. DL Says:

    This entire conservative skirmish is so like the history lesson I just finished teaching. The loyalists supported King George (no insult intended-I love him, but…)
    while the patriots believed loyalty was not as important as the cause (freedom…)
    They were sniping at each other, but when the war came, most settled down to fight a common enemy, the real oppressors.

    And so we have today our loyalist and dissidents who have been quite unfairly maligned, just because they wont succumb to blind loyalty and trust in their official leader. When it is all over the loyalists will join in the battle with the real enemy and confront the liberals and RINOs that have so worked in unison to corrupt a once great country and its values.

    I do feel that bush is hurting the cause greatly by not sensing the magnaminity of his politically divisive choice. Adding insult, by having his pro-choice, but otherwise
    kind and gentle wife, with her degrading sexist charge doesn’t help the cause. Frankly, It smacks more of typical Democrat nonsense and behaviour, than compassionate conservatism. Nor will hauling out a string of friendly judges next week solve the problem-just exacerbate it.

    It is indeed both disappointing and humorous to watch the pro-Miers crowd utilize the tactics of the left by attacking their own “messengers” personally, and attempting to assasinate their character.

    It is likewise very instructive to see the pro-Miers crowd hurl invective at those long-time conservative pundits that do not support the Miers choice. Just a few weeks ago, these pro-Miers people were worshipping every written word from these very same “icons” of the right. Suddenly after years of battle, for the same common cause-they became ignorant fools.

    It will take a long time before the scars heal in conservative land. The big tent has just gone through its three ring circus act-some will now leave.

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