The conservatives' noisy split over the Harriet Miers Supreme Court nomination has largely obscured the fact that Senate Democrats could control her fate in a way that was never possible in the confirmation battle over Chief Justice John G. Roberts Jr.
While the turmoil on the right offers Democrats a tantalizing opportunity, party strategists said, it also will confront them with a difficult choice: Confirm a conservative with close ties to President Bush, or oppose her and join ranks with hard-right activists who historically are their archenemies.
For now, Democrats and liberal groups have been content to stay mostly quiet and watch Bush tangle with a restless corps of usually supportive conservatives who oppose Miers's nomination. But with Senate Judiciary Committee hearings beginning next month, Democrats acknowledge they will eventually have to move off the sidelines and begin making a case for or against the president's personal lawyer and White House counsel.
That decision will be far more difficult — and decisive — if the conservative schism persists and prompts a handful of Republicans ultimately to oppose Miers's confirmation. If six of the Senate's 55 Republicans do so, the nomination would fail if all 44 Democrats and the chamber's Democratic-leaning independent also voted nay.
Such solidarity may be improbable, considering that Senate Democrats split 22-22 on Roberts's confirmation. But the curious dynamics of the Miers nomination are expanding the range of realistic possibilities.
All 55 GOP senators voted to confirm Roberts as chief justice, making Democrats' votes irrelevant to his fate. But several Republicans are holding out the possibility of opposing Miers, meaning that the Democrats conceivably could determine whether she joins the court.
Plan to lay low, for now
The strategy for now is "to not interrupt the argument that's going on in the Republican camp," said Joel P. Johnson, a lobbyist and former Clinton administration aide with close ties to Democratic senators. "But as we get closer to the hearings, and if this thing moves to a confirmation vote, I think it's going to begin to occur to people that this person who is completely devoted to the president is not very likely to let the president down."
Such a conclusion, he said, would incline most Democrats to vote against Miers. Asked whether they might feel uneasy siding with conservative writers George F. Will, Charles Krauthammer and others calling for Miers's rejection, Johnson said: "Not a bit. I think senators understand that it takes strange bedfellows to pass things and strange bedfellows to kill things. And they're quite comfortable with that."
Jim Jordan, a former presidential campaign manager for Sen. John F. Kerry (Mass.), agrees that Democrats will have plenty of reasons to oppose Miers, but he said some worry that Bush might replace her with a more forceful and effective conservative. "Even though she's undoubtedly a mediocrity," he said, "philosophically she's probably the best they [Democrats] can do."
Jordan added: "If the Republicans splinter, as looks likely now, the Democratic caucus will be in the bizarre position of having to decide whether to bail Bush out." The choice will not be easy, he said. "From a purely political standpoint, they'll have to decide whether to add to his humiliation," Jordan said. A Miers rejection, however, would allow Bush "a do-over" that could improve his relations with his conservative base.
The initial Democratic reaction to Miers's nomination has been muted and unfocused. Some senators have questioned her qualifications, but Minority Leader Harry M. Reid (Nev.) surprised colleagues by saying he had urged Bush to consider Miers for the post. The day after Bush tapped her, Reid said in a speech, "I am very impressed by what I know about Harriet Miers."
Some Democrats view Reid as unpredictable on nominations, noting that he remained neutral on Roberts for weeks, only to become the first Democratic senator to publicly call for his rejection.
'The perfect defense'
Several Democrats say the relative dearth of public documents outlining Miers's judicial philosophies — and the fact that she has never been a judge — obligate her to answer questions more fully than Roberts did a month ago. "If we're going to have any evidence, any information to make an informed judgment for a lifetime appointment to the highest court in the land, Ms. Miers has to come forward even more than John Roberts and explain who she is and what she believes," Sen. Richard J. Durbin (Ill.), a Judiciary Committee member, said on CNN last week.
Democratic consultant Jenny Backus said Democrats ultimately can oppose Miers on principled grounds — including her qualifications and values — without expressly making common cause with conservatives.
"There are so many things that are wrong with her along the ideological spectrum," Backus said. Meanwhile, she said, conservatives' complaints about the nomination will make it easier for moderate Senate Democrats — most of whom voted to confirm Roberts — to oppose Miers. "The George Will column [attacking the nomination] is the perfect defense" for a Democrat from a Republican-leaning state to oppose Miers, Backus said.
Reid spokesman Jim Manley said that "there's a certain Alice in Wonderland quality" to the Miers nomination, with many of Bush's traditional allies attacking him and liberal senators wondering whether they might end up joining forces with the chamber's fiercest conservatives.
"Down is up," Manley said, "and up is down."