With his nomination of Harriet Miers to the Supreme Court, President Bush has succeeded in doing what his Democratic antagonists, Rep. Nancy Pelosi and Sen. Harry Reid, could not: he has split the conservative movement.
Miers, a Republican, and ex-California Gov. Gray Davis, a Democrat, seem an odd couple. What connects them is that party loyalists in each case are being asked to defend candidates for whom they feel little or no enthusiasm. Going into battle without passion is demoralizing — and demoralized troops tend to lose elections, as Democrats did in the California recall balloting in 2003.
Emerging from a meeting of conservatives on Capitol Hill Tuesday afternoon, Connie Mackey, a lobbyist for the Family Research Council, a leading social conservative group, gloomily called Miers "a blank slate we've been asked to endorse."
The Miers nomination "takes a lot of steam out of the grass roots," she said, adding that "the Democrats are in seventh heaven."
Could the FRC oppose this nomination and work to defeat Miers? "It's not something we're looking to do, but we're leaving all our options open," Mackey said.
The Democrats seem to be winning at the moment here in Washington: The indictments of former House Majority Leader Tom DeLay, the post-Katrina change in sentiment that forced Senate Majority Leader Bill Frist to call off a vote on estate tax repeal, and the perception among conservatives that Bush lost his nerve by nominating Miers instead of an impeccably conservative judge such as Michael Luttig to the Supreme Court.
Bush answers the skeptics
When reporters repeatedly asked Bush at his press conference Tuesday morning whether Miers really was the best qualified person for the Supreme Court, Bush insisted that “people are going to be amazed at her strength of character and intellect.”
But that left open the question: If Miers is a classy, top-of-the-line conservative, then why was Sen. Charles Schumer, D-N.Y., beaming in contentment at his press conference Monday when he proclaimed that in nominating her, Bush had rebuffed “the very extreme wing of his party”?
Anyone who has recently attended a meeting of the Federalist Society, a group of conservative lawyers and scholars dedicated to a strictly limited reading of the Constitution, can identify judges and lawyers who command respect for having written eloquently about the great constitutional issues of the day (the detainees at Guantanamo, the death penalty, racial preferences in college admissions, etc).
Luttig, who serves on the Fourth Circuit Court of Appeals in Virginia, Judge Michael McConnell of the 10th Circuit and Georgetown University law professor Viet Dinh are top-tier thinkers who spark excitement among Federalist Society members. All have records far more ample than that of Miers.
Former Bush Justice Department official John Yoo said Bush had wasted “a rare opportunity to change the direction of the Supreme Court.”
He reported that “conservative Republicans will remain in mourning that Bush refused to elevate one of the many talented, principled believers in judicial restraint on the lower courts. Miers does not come off Bush's deep bench of conservative appellate judges.”
Weekly Standard editor William Kristol called the nomination “cronyism and capitulation on the part of the president.”
Conservative calls Bush ‘desperate’
Wesley Pruden, editor-in-chief of the conservative Washington Times, mocked Bush Tuesday: “Frightened by a rising tide, he's desperate not to give offense. He reprises the familiar Republican campaign slogan: ‘I'm a conservative, sort of, but I'm not as bad as you think.’”
One conservative who rose to Miers’ defense was evangelical psychologist and radio host James Dobson.
“We know people who have known her for 25 years, and they vouch for her. These are people we know and people who share our philosophy,” Dobson assured Brit Hume of Fox News on Monday night.
“I do know things I’m not prepared to talk about here,” Dobson added cryptically. “Who knows? You don’t know until someone gets on the court whether or not you’ve made a disastrous mistake. We made that mistake with (Justice David) Souter. And maybe this is a mistake. But for now she looks good to us.”
He added, “She is a conservative Christian.” He confirmed that Miers is an evangelical Christian. “I know the church she goes to, and I know the people who go to church with her.”
Those conservatives who aren’t evangelical Christians or who don’t think that being an evangelical Christian should matter one way or another when a president selects justices for the high court were left to wonder how Miers will handle herself in the Judiciary Committee confirmation hearings.
End of the Bush Era?
If Miers is as uninspired a choice as Kristol, Pruden and Yoo say she is, then Oct. 3, 2005, may have marked the end of the George W. Bush Era.
For conservatives, Monday may go down in history as comparable to Sept. 30, 1990, the day that Bush’s father agreed to $134 billion in tax increases and abandoned his “read my lips, no new taxes” pledge. The senior Bush demoralized conservatives, leading to his defeat in 1992.
Two weeks ago, Sen. Sam Brownback, R-Kan., a leading social conservative and potential 2008 presidential contender, explicitly made the connection between 1990 and today.
Bush, he said, needed to steer clear of the fatal blunder his father committed 15 years ago when he betrayed the no-new-taxes pledge.
“My fear is that we would get somebody that is very malleable, in order to get through the (confirmation) process easily,” said Brownback.
‘Questions ... need to be answered’
He said he had told Bush’s aides, “This is what the whole 2004 election was about. As one of them noted to me, for the president to nominate somebody who would be a legislator instead of a judge would be the equivalent of what his dad did in breaking his ‘no new taxes’ promise in 1990. That is how central this issue was in the last election. ... People know who went door-to-door in Ohio for the president and who won Iowa for the first time in 20 years. It was predominantly social conservatives and people who are deeply concerned about the direction the Supreme Court is taking the country.”
On Tuesday, Brownback was in Kansas. He issued a written statement that made his role in the confirmation hearings well worth anticipating.
“I am not yet confident that Ms. Miers has a proven track record, and I look forward to having these questions answered,” Brownback said. “The confirmation process has just begun, and questions about her views on the Constitution need to be answered.”