The confirmation of Harriet Miers appears almost as likely to fail as it is to succeed. Whether or not Miers is ultimately confirmed, the way that some have chosen to oppose her and the way some have chosen to react to that opposition, has resulted in hard feelings among conservatives. What is even more unfortunate, however, is the effect some of the arguments and tactics used in the battle over Miers may have on future judicial nominations.
Beginning the day the nomination was announced, many conservatives reacted with intense emotion. In fact, due to the unexpected nature of the announcement, most early opposition to Miers seems to have consisted more of passion than of plans for action. Three weeks later, it appears that the end result desired by many who opposed her on that first day may come to pass. Whatever the result, the tactics used by many in opposition to the nomination have set precedents that may make the confirmation of future nominees more difficult, or at the very least, more complicated.
Some of the proposed qualification requirements include that the nominee needs to have been a judge or have an extensive paper trail equivalent to a judge, have only attended a top tier law school and have not been personally known to the president.
From the day of the announcement, I have been in what some have called the “wait and see” camp. My initial decision came effortlessly, because for over four years, Republicans have told Democrats that the president is entitled to his choice of judicial nominees and that each of those nominees should be given a fair hearing and an up or down vote.
As some of Miers’ past positions on affirmative action and other issues came into question, I became curious to hear her explanations. I have come to believe that the conventional wisdom, which says hearings reveal nothing, might just be dead wrong. Past hearings have consisted of those in the president’s party tossing a few softball questions and spending the rest of their time defending the nominee, while the Democrats made vanity speeches, asked “gotcha” questions and occasionally even let the nominee attempt to answer. I believe the Miers hearing will be much different.
Due to pressure put on senators by conservatives opposed to Miers, the most difficult questions will likely come from Republicans, rather than Democrats. Instead of questions about how cases will be decided in the future—questions nominees cannot and should not answer – inqureries questions will pertain to Miers’ past statements and actions and her general judicial philosophy. These are questions she would have to answer and answer quite convincingly in order to garner enough votes for confirmation.
Because questions would come from senators seeking to find out whether or not the nominee is a true conservative, the questions asked would be more substantive than in the past. I think it is even possible that the debate over judicial philosophy, which many conservatives have been itching for, could take place. If the Miers nomination makes it to the hearing stage, and the hearings are, as I predict, different than those in the past, much of the credit will go to the opponents of the nomination for the role they played in both educating and applying pressure to Republican senators.
It is entirely appropriate that conservatives look into Miers’s past and voice their concerns and even their opposition, if that is their position. What I have disagreed with over the past few weeks is the tactic of some Miers opponents to attempt to get the President to withdraw the nomination by telling him loudly through various media outlets that he is wrong and stupid. Just as this tactic didn’t work when Democrats tried it with the war in Iraq (and other issues such as tax cuts), it will not persuade George W. Bush. Carol Platt Liebau put it this way, “Too much of the criticism has been premature, overly personal, or deeply unfair — and almost guaranteed to get the president’s “back” up, rather than convince him that perhaps other choices would be better.”
As emphasis shifts from personal feelings toward President Bush over the Miers nomination to issues of judicial philosophy, an opportunity exists to communicate with and influence those in the Senate to either go forward with tough, informative hearings or for those in the Senate to inform the president that there is not sufficient support for the nomination to continue. There are those on both sides of the nomination with valid reasons for opposing positions. It is possible to be a strong and effective advocate for either position and still be respectful of each other. I hope that is what we will see from here forward.