The conventional wisdom in Washington has been that George W. Bush's second Supreme Court nomination would be vastly more controversial than the first, causing huge hissy fits, titanic temper-tantrums and endless caterwauling. The conventional wisdom gets partial credit. There has indeed been much gnashing of teeth and rending of cloth over the nomination of Harriet Miers, but it has been almost exclusively on the political right.
Yes, yes, the usual liberal activist groups issued their press releases condemning the president's pick, but that system was on autopilot already. In fact, I hear Ralph Neas of People for the American Way is creating a holographic version of himself which will condemn "extremist judges" millennia from now, when the earth is ruled by super-intelligent bees.
The authentic dismay has been on the right. Many conservatives believed this was the opportunity for a slam dunk. John Roberts was an inspired choice. His credentials are impeccable, his abilities beyond dispute. If Bush appointed a Michael McConnell or a Michael Luttig - brilliant judges on the 10th and Fourth Circuits, respectively - he could have not only moved the court to the right but moved the entire legal culture through the sheer intellectual force of the justices.
Harriet Miers credentials are, shall we say, modest. By consensus, she's a distinguished attorney and highly capable presidential aide. She was a major player in Texas legal circles, serving as the first female head of the State Bar of Texas. President Bush's introduction on Monday smacked of resume padding. She was on the Dallas City Council and tried cases before judges. And, President Bush noted, as head of the Texas Lottery Commission Miers "insisted on a system that was fair and honest." That's a bit like saying that, as head of the water authority, she insisted tap water be fit for human consumption; it's the right position but hardly a profile in courage.
Among conservatives there are several competing - and sometimes overlapping - theories as to why Bush settled on Miers.
-He had no choice. He's weakened by Katrina, Iraq and the polls, and he can't afford Armageddon in the Senate. A stealthy, female nominee who was all but pre-approved by Senate Minority Leader Harry Reid is the prudent step at this time. In other words, she's confirmable, and at the end of the day the one indispensable qualification for any nominee is that they can actually make it to the bench.
-She's a crony. This isn't really a theory so much as an observation. She meets the dictionary definition of a crony: a longtime personal friend. She was Bush's personal attorney and in the White House she was his trusted gatekeeper. Bush prizes loyalty above most other considerations and has a long history of picking loyalists above more credentialed outsiders. Bush knows her "heart" and trusts that she reflects his views.
-She's a woman. Again, this is no theory either. But Mrs. Bush has stated that she thinks there should be another woman on the court, and many moderate Republicans and Democrats - including Senate Judiciary Chair Arlen Specter - have indicated that they'd be inclined to vote for a woman.
-She's an evangelical Christian who's been a member of the Valley View Christian Church in Dallas for 25 years. Marvin Olasky and James Dobson, two leaders of the conservative evangelical community, came out early to endorse her. Not only does this suggest that they believe she's a cultural conservative with settled views similar to the president's about church-state issues and abortion, but it offers an opportunity to have this important political constituency represented on the court. Identity politics isn't just for Latinos, blacks and women anymore.
A bonus is that Democrats tend to get stuck on stupid when it comes to dealing with Christian conservatives. Nothing would please Karl Rove more than to watch Chuck Schumer and Joe Biden maneuver themselves into a position where they sound like they're saying "committed Christians need not apply."
None of these is a bad reason for tapping Miers. But President Bush has put himself in the awkward position of asking his base to trust him at precisely the moment the base was expecting Bush to demonstrate their trust was well-founded in the first place. For this reason and others, the Miers nomination has opened up several criss-crossing fissures on the right: East Coast credentialists vs. outside-the-beltway populists, Bush loyalists vs. conservative movement activists.
The press will spend a lot of time wondering what the Democrats will do. But for now the more interesting question is, what will the Republicans do?
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