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Saturday, October 22, 2005
Unforeseen but Unsurprising, II: Bush's Tactical Situation

The Bush administration continues to fumble their second nomination to the Supreme Court, White House Counsel Harriet Miers. Over the past three weeks since she's been nominated, Miers has been portrayed as: a hardworking moderate, a trailblazer for women in the field of law, a person of impeccable morality and immutable opinions, a potential judge who interprets the law strictly, a person who believes in and supports stare decisis particularly as it pertains to Roe, a pro-life evangelical Christian who will overturn Roe, a person whose views on Roe are unknown, an outsider the judicial process, and a person intimately familiar with constitutional questions. Unsurprisingly, not all of these images of Miers coincide; in fact, some of them are mutually exclusive.

In my first post on the issue, I offered that the main reason Bush nominated Miers was due to her pro-business tendencies rather than her moral positions. The second reason I believe that Bush nominated Miers was due to the tactical situation the Senate put him in.

The Senate Republicans

In analyzing Bush's tactical situation before the Miers nominated, we find that many Senate Republicans were not eager to fight a battle over a hard line conservative. The so-called Gang of 14 Senate moderates heavily signaled to Bush that they didn't want a nominee they would have to filibuster. A filibuster in the Senate would have given a green light to power-hungry and irresponsible members of the Republican caucus to invoke the "nuclear option"; this option would permit the 55 Senate Republicans to rewrite the rules on filibustering such that a simple majority would be sufficient to end a filibuster, effectively making the Senate chambers as majoritarian and capricious as the House of Representatives.

Tapscott's Copy Desk, a conservative ideologue if I ever saw one, makes the point most forcefully in an entry title "Memo to My Friends on the Right: Miers isn't the Issue; Weak-Kneed Senate GOP Leadership Is":

That point is this: As long as the Senate GOP leadership refuses to confront head-on the Democrats' abuse of the filibuster and end it, the Democrats have a veto if they choose to use it. And choose it they will for any nominee short of one with an undeniably perfect record - John Roberts - or one with no record at all, Harriet Miers. Bush knows all hell would break loose politically if he nominated a candidate from the Old Guard wing of the GOP who would satisfy the Senate Democrats. Such a move would likely spark a revolt among the GOP's conservative infrastructure (note, it's not just "the base"). The resulting Senate GOP majority of one or two and a paltry five or six in the House would mean Bush would twiddle his thumbs for the last two years of his White House residency.

Stingray, "a blog for salty Christians" (whatever that means), concurs on this point. After pointing out that the constitution, contra Jacob Levy and George Will, is not "some sort of rarefied Gnostic writing that only the initiated can understand. It is a simple, succinct document that any decently intelligent person can sort through and apply to real-world situations. We have had too much constitutional voodoo over the years with the Supreme Court finding all sorts of emanations and penumbras that would make the Founding Fathers slap their heads", he places the blame on the Senate Republicans for this nomination. (Side note: Without agreeing with his point that our constitutional interpretation should be limited by the opinions of those present at the creation of any given constitutional amendment, he is correct that the constitution doesn't require magic, ritual, or divination to understand.) Stingray continues: "Unfortunately, there is an influential mass of conservatives who are upset that Bush did not choose a fire-breathing conservative with extensive right-wing credentials like Michael Luttig, Janice Rogers Brown, or even Priscilla Owen. The real reason for Bush’s apparent shying away from such a controversial not that he lacks the guts to fight, but rather that the Senate GOP leadership has their dresses over their heads and refuses to fight the Democrats over a filibuster."

To hammer home the point that for him the problem is the Senate and not Bush, Stingray maintains:

It all boils down to this: First, the Republican leadership ceded control of the Senate to 41 Democrats. Then, last spring, they effectively ceded control of the Senate to a group of 14 people. President Bush has good reason for not trusting the Republican leadership to do its job and force a simple majority vote on his nominees. Appointing a fully-credentialed conservative nominee would be like going into battle and having to depend on the French to win it for you.

Bush is not afraid of a fight. The first thing that he did after the Gang of 14 made its agreement was to re-submit the names of 10 nominees whom the Democrats had previously filibustered. Plus, he made John Bolton the recess appointment as United Nations Ambassador when the Senate was out of session. Previously, the Democrats had threatened to filibuster Bolton. The simple fact is that until the Senate Republican leadership does its job and returns the Senate to a majority rule, Bush will be forced to nominate stealth candidates for high positions. Conservatives are mostly happy with Roberts because he has such sterling credentials but, the truth is that we really do not know where he stands on such hot-button issues as abortion. We probably know, but he may end up being one of those who are personally against Roe v. Wade but will not vote to overturn it. The same thing goes for Harriet Miers. She has had an extremely successful career by any measure yet one of the reasons for Bush nominating her is that she has no paper trail or official public opposition to abortion.

I am happy with Harriet Miers because, to those of us who are politically and religiously active in Dallas, she is not an unknown quantity. She has proved herself to be a capable leader and extremely competent attorney who has important consensus-building skills (something that Scalia and Thomas unfortunately lack). However, if anyone is not happy with Bush’s choice, they need to look no further than the Republican Senate leadership to see where the blame lies. This is all about having power but refusing to use it. If the Republican Senate leadership is going to allow itself to be run by a mere 14 members, then perhaps we need new leadership.

The New Republic takes a slightly different approach and makes the claim that the conservative backlash against Bush has been building for some time. When Bush first came to power, remarks the New Republic through David Frum, "[Bush] was a new thing. Every conservative knew he was a blend and was going to reach out to new constituencies. What the old coalition was going to get was a tax cut and judges. ... But the tax cut has turned out not to be a very valuable thing. Because of the deficits, this tax cut is not going to be permanent. Now here [with Miers] is the other most important thing he was going to do for conservatives, and he didn't do it." After so many betrayals, the true conservatives in the Republican coalition are ready to move on and are more than slightly peeved about the Miers nomination. The New Republic continues in its lofty authorial voice:

As conservatives tell it, the current insurrection has been building for some time. Bartlett, the mainstream conservative who has written and thought the most about Bush's disloyalty, tells the tale this way. In 2001, conservatives were deeply frustrated by low-level Bush heresies like the education bill. Then, September 11 silenced all dissent. In 2002, things got worse: An enormous agriculture bill, steel tariffs, a bloated budget, and a campaign finance bill that Bush once argued was unconstitutional. (Bartlett goes so far as to say Bush "violated his oath of office" by signing it.) Then, the Iraq war silenced all dissent. Next came the Medicare prescription-drug bill, which simultaneously funneled money to the pharmaceutical industry, expanded government more than any entitlement since LBJ, and violated the traditions, if not rules, of the House when the vote on the bill was held open for nearly three hours while conservative Republicans were bullied into reversing their no votes. "From my own point of view, the drug bill was the line in the sand," says Bartlett. "That's the point I decided to write a book and say this guy isn't one of us."
Other conservatives were also very angry. Then, the presidential campaign against John Kerry silenced all dissent.

We know the rest of the story: Absent a new war or domestic enemy like Kerry, Bush was suddenly exposed to the whole world, including the conservative movement, as a less-than-great president. Social Security reform fizzled. Bush signed an outrageously pork-laden transportation bill. He vacationed while New Orleans drowned. "What a lot of conservatives have always believed is that at least we know how to make the trains run," says a chastened Bartlett. "It was jarring that the MBA president wasn't a good manager." And then it was even more jarring that he wasn't such a good picker of Supreme Court justices, either. "Judges in the mold of Scalia and Thomas were the 'no new taxes' pledge of this presidency," says Frum. Scales fell from eyes, and the rebellion began.

The Senate Democrats

The Senate Democrats had even more reason to be less supportive of Bush. The Democrats have been, sadly, an opposition party without a true platform since the demise of Vice President Al Gore. Their rallying cry in 2002 and 2004 was that Bush "stole" the 2000 Elections. When the Republicans gained seats in the House and the Senate during the 2002 mid-term election, the Democrats were reduced to an anti-Bush platform of "Beat Bush in 2004." Passing over the centrist, moderate Democrat crazy-man Howard Dean for presidential nomination due to his "electability" Democrats could only be confused about the future of their political party after the narrow, but sufficiently decisive presidential and congressional Republican victories in 2004.

The Washington Post reports Howard Dean's angst over the judicial nominees: "In an interview, Dean said Democratic unity is essential in the upcoming battle and that the party "absolutely" should be prepared to filibuster -- holding unlimited debate and preventing an up-or-down vote -- Bush's next high court nominee, if he taps someone they find unacceptably ideological. He cited appellate court judges Priscilla R. Owen and Janice Rogers Brown as two who would be likely to trigger such opposition. "Those people are clearly not qualified to sit on the Supreme Court, and we're going to do everything we can to make sure they don't," he said. "If we lose, better to go down fighting and standing for what we believe in, because we will not win an election if the public doesn't think we'll stand up for what we believe in."" Was Howard Dean justified in castigating Judges Priscilla Owen and Janice Rogers Brown as "unacceptable"?

In the case of Judge Priscilla Owen the answer is yes. Wikipedia gives the down and dirty on Priscilla Owen nomination to the federal courts: "In 2001, Owen was nominated by President George W. Bush to her current post on a federal appellate court that hears appeals arising in several states, including Owen's home state of Texas. However, due to Senate disagreement over the issue of appointees considered to be extremely conservative, Democrats (who controlled the U.S. Senate at the time) did not let her come up for a vote. In 2003, after Republicans had taken the Senate back, Democrats filibustered her, along with her several other federal court nominees. Only in 2005, after Republicans picked up four more seats in the Senate did she again come up for a vote. Democratic Party senators had filibustered her nomination until May 2005 when a compromise was arranged by the "Gang of 14," which were a group of moderate senators from both the Republican and Democratic Parties. She was finally confirmed by a vote of 55 to 43 on May 25, 2005 and was sworn in on June 6, 2005. " Priscilla then was confirmed by strict party line votes after the deal to filibuster. The ideological nature, in the case, of the nomination seems to warrant concern.

What of Janice Rogers Brown? "She was nominated by President Bush on July 25, 2003 to be a United States Court of Appeals judge. The Senate Judiciary Committee held a hearing on her nomination on October 22 of that same year. After her name had passed out of committee and had been sent to the full Senate, there was a failed cloture vote on November 14, 2003. Bush renominated her on February 1, 2005.On April 21, the Senate Judiciary Committee again endorsed Brown and referred her name to the full Senate once more. On May 23, Senator John McCain announced an agreement between several moderate Republican and Democrat U.S. Senators, the Gang of 14, to ensure an up-or-down vote on Brown. On June 8, Brown was confirmed as a judge on the United States Court of Appeals for the District of Columbia Circuit by a 56-43 Senate vote. She received her commission on June 10. Although no official announcement of her swearing-in ceremony was made, she began hearing federal cases on September 8." Brown also seems to have been confirmed by party line vote plus one Democrat.

The White House perception is that John Roberts squeaked by due to his lack of record. Many Republicans and Democrats couldn't pin him down on key issues and thus, had, no real reason to oppose him. Thomas Sowell, in a column entitled "Harriet Who?" on 7 October 2005, wrote: "President Bush has taken on too many tough fights -- Social Security being a classic example -- to be regarded as a man who is personally weak....Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators." Thomas Sowell, trying to be optimistic about Miers, added (in only the way Sowell can):

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad. The very fact that Harriet Miers is a member of an evangelical church suggests that she is not dying to be accepted by the beautiful people, and is unlikely to sell out the Constitution of the United States in order to be the toast of Georgetown cocktail parties or praised in the New York Times. Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement. We don't know. But President Bush says he has known Harriet Miers long enough that he feels sure.

For the rest of us, she is a stealth nominee. Not since The Invisible Man has there been so much stealth. That's not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans' Senate "majority."

There is another aspect of this. The Senate Democrats huffed and puffed when Judge John Roberts was nominated but, in the end, he faced them down and was confirmed by a very comfortable margin. The Democrats cannot afford to huff and puff and then back down, or be beaten down, again. On the other hand, they cannot let a high-profile conservative get confirmed without putting up a dogfight to satisfy their left-wing special interest groups. Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say that they had no idea and that she stonewalled them at the confirmation hearings.

The Senate Democrats can't afford to have another high-profile intellectual conservative, and the Senate Republicans don't want a fight. As a person who wanted either Janice Brown or Alberto Gonzales on the Court as the best possible Bush picks--unless I could vote for Charles Ogletree or Cass Sunstein--Miers is looking like she's not so bad so far. More on her qualifications another day. We still have a chance at Gonzales, though, if John Paul Stevens leaves the court.