David Limbaugh

I disagree with right-wingers who profess to be heartened by the rancorous debate among conservatives over the Miers nomination. Unfortunately, in many cases, the disputes have degenerated into personal attacks, which are doubtlessly pleasing liberals to no end.

        President Bush has made his selection, and it's not going to change. He's not going to withdraw his controversial nomination like Bill Clinton dumped his law school classmate Lani Guinier at the first sign of trouble. Despite Clinton's long-term friendship with the "Quota Queen," he claimed he was unaware of her extremist writings when he nominated her. Unlike Clinton, President Bush wouldn't abandon one of his own in a million years -- especially since he has known her well and recently.

        Though I suspect he's been shocked by conservative opposition to his pick, I also suspect that he's more entrenched than ever in his position. He seems to rise to higher levels when under fire, which is one of the reasons I've been somewhat disappointed with this nomination. It appears to many that in picking Miers he gave up without a fight.

        Most of Miers' skeptics aren't insisting that nominees hail from elite, Ivy League law schools. But many did have their hearts set on one of a fairly small group of eminently qualified judges and lawyers who have, in effect, been in training for this position for years.

        That groups consists of people they strongly believe to be originalists precisely because they have established a reputation as just that: unapologetic originalists. They have been unafraid or forced by circumstances to make their judicial philosophy known through their advocacy, scholarly writings, judicial opinions, speeches or otherwise.

        The skeptics preferred those whose judicial philosophy is a matter of public record, or readily discernible, without ambiguity, because they are a far safer bet to be originalists than any other possible choices. They're also more likely to resist the pressures that compel some justices -- like Anthony Kennedy -- to "grow" over the years.

        The skeptics also believe that since President Bush won re-election and there are 55 GOP senators, it was high time he pick a strong originalist. Sure, that would bring on a "nuclear battle" in the Senate. But they were prepared for that and confident Mr. Bush could win that battle, even with a few defections from the GOP Seven of the tyrannical Gang of 14.


David Limbaugh

David Limbaugh, brother of radio talk-show host Rush Limbaugh, is an expert on law and politics. He recently authored the New York Times best-selling book: "Jesus on Trial: A Lawyer Affirms the Truth of the Gospel."

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