Having made a catastrophic misjudgment of his own party by nominating Harriet Miers to the Supreme Court, President Bush has now learned the hard way that he would be wise to keep conservatives close by his side.
The withdrawal of Miers Thursday was a landmark victory for conservatives and sets the stage for a historic defining battle over the direction of the Supreme Court and of American society.
While Senate Judiciary Committee chairman Sen. Arlen Specter R-Pa. called the treatment of Miers “really disgraceful” and “a sad episode in the history of Washington, D.C.,” conservative Sen. Norm Coleman, R-Minn., seemed quite upbeat, saying her withdrawal “demonstrates the sanctity, the preciousness, the beauty of the confirmation process.”
“I think it’s an actual positive for the conservative movement,” said Sen. George Allen, R-Va. “The conservatives, we trust President Bush, but I wanted to verify that Ms. Miers or any other nominee had that judicial philosophy.”
As conservative pundit Charles Krauthammer suggested in a Washington Post column last Friday, the president cited the Senate’s request for documents shedding light on Miers’s work as White House counsel as the reason why the nomination could not go forward.
Specter emphatically said Wednesday his committee was not seeking any documents that would have revealed any confidential advice Miers provided to the president.
But, flatly contradicting Specter, Bush said in a written statement that, “Senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a President's ability to receive candid counsel.”
Sen. Dick Durbin, D-Ill., a member of the , wasn’t buying Bush’s explanation Thursday. “The real reason, of course, is that Harriet Miers faced withering criticism from the right wing of the Republican Party,” Durbin said.
The Miers withdrawal “was not about documents, it’s about Dobson,” he said, referring Dr. James Dobson, the Colorado-based conservative radio host, who three weeks ago vouched for Miers as a Christian conservative.
The social conservative forces within the GOP either opposed Miers from the outset or soured on her once they read some of her speeches, especially a 1993 address in Dallas calling for women to have “self-determination” on abortion.
“The Dallas speech was one of those break-over issues. A number of people on the president’s side of the ledger were willing to give her the benefit of the doubt — but then that speech comes out, and it’s like, ‘We can’t risk this,’” said Sen. Sam Brownback, R-Kan., a leading conservative on the Judiciary Committee.
“I think the president, in a weakened political position, decided he couldn’t fight off the right wing of his own party,” Durbin said.
Who'll replace Miers?
What’s next? “If he picks a candidate who clearly satisfies the most extreme, radical element of the Republican Party, that candidate is not going to reflect the values of America and there will be a real fight in the committee and on the floor of the Senate,” Durbin predicted.
“They have set a standard now for the swing vote on the Supreme Court that the right wing will not be satisfied unless they have an ideologue who endorses their point of view,” he said.
“America is looking for someone who is balanced and moderate and centrist,” Durbin said. In a written statement, Sen. Hillary Clinton, D-N.Y., called on Bush to select “a consensus nominee.”
But Brownback said he and other conservatives would welcome a historic battle, a great national debate over the direction of the country and how the great social controversies are settled by the nine justices.
“I think it’s time to have an open debate about what this is about: which is the right to privacy, God in the public square, private property,” Brownback said, as he hurried off to a TV interview. To his list, of course, should be added: abortion, the death penalty and same-sex marriage.
“We want a nominee that’s set — like Ruth Bader Ginsburg is set,” Brownback said. Prior to joining to the Supreme Court in 1993, Ginsburg was a pre-eminent feminist legal scholar and a counsel to the American Civil Liberties Union.
Brownback is urging Bush to appoint a conservative star of similar magnitude.
Great national debate on abortion
For those on the right, the battle over the next nominee is an opportunity to once and for all debate the validity on the 1973 Roe v. Wade decision that made abortion legal in all 50 states, overturning laws in dozens of states.
Brownback added later, “The Left has had a litmus test all along: that the nominee cannot be pro-life... I think you should have a nominee that’s known on these issues and let’s have the discussion. The point of the matter is Roe is bad law. It’s poorly decided, it’s not in the Constitution. (Abortion) should be decided by legislatures, and we’re at a point in time where we should have the discussion with [the] country.”
Allen called for “a person with a record that clearly, demonstrably and convincingly shows that they are going to be a judge that will not be inventing the law, will not be amending the Constitution by judicial decree.”
Allen suggested the names of federal appeals court judges Michael Luttig, Karen Williams, J. Harvie Wilkinson, or Janice Rogers Brown.
“This is a crucial vacancy, a swing seat, one where those of us who have our (conservative) philosophy of government can actually gain ground,” Allen told reporters.
Conservatives are thinking about the long term — the next 30 years — and they reason that in the long run Sandra Day O'Connor’s seat on the Supreme Court is far more important than the furor over CIA employee Valerie Plame. Who controls the high court in the long run determines America’s social policies.
If one thinks back to the Reagan Era, when O’Connor was appointed to the high court, the scandals of that presidency — false testimony about Labor Secretary Roy Donovan’s alleged ties to organized crime, Attorney General Ed Meese’s finances, the Iran-contra furor — now seem antique and proved to have had little effect on the long-term direction of the country.
But another artifact of the Reagan Era, Justice O’Connor, is as potent a figure in Washington today as she was in 1981. Justifiably deemed the most powerful woman in Washington, she has had a profound effect on the country on the death penalty, racial preferences, gay rights, and other contentious issues.
In the first hours after Miers’ withdrawal, Senate staff sources said they expected Bush to move quickly – perhaps as soon as Friday – to announce a nominee.
Having learned the power of the conservatives, logic suggests that Bush would choose a conservative with clear track record of law review articles, speeches and judicial rulings to prove his or her conservatism.
That in turn may well spark a Democratic filibuster, and present Majority Leader Bill Frist with a decision as to whether to seek a rule change to ban judicial filibusters.