Q&A Friday #25: Should The Miers Nomination Be Withdrawn And/Or Voted Down?

by John Hawkins | October 21, 2005 2:34 pm

Question: “Given how big a deal President Bush makes out of “staying the course” and “not looking at polls”, do you honestly believe there is any realistic chance that the Miers nomination might be withdrawn, and if it is not withdrawn, do you want her to be rejected by the Senate, knowing that this may make Bush a lame-duck President and greatly hinder his ability to get anything else done?” — maledicta

Answer: First of all, somebody in the White House needs to take a few moments to reflect on what they originally intended to accomplish by nominating Harriet Miers, how that has worked out for them, and how much sense it makes to continue pushing her nomination.

For example, if Bush’s goal was to select a stealth nominee who could glide through confirmation hearings, well, that’s not going to happen. The confirmation hearings are going to be a hell circus and given that Miers is already bombing out in relatively friendly, 1 on 1, meetings with Senators[1], there’s no reason to think that she’s going to hit a home run when the pressure’s on, especially since she will be compared to John Roberts.

But what if Bush selected Miers because he thought he couldn’t get a better nominee through? Well, that’s not likely to be a problem either. After seeing the fury directed at Bush, DeWine, Chaffee, McCain, Graham, Specter and Company will vote for the nominee and the nuclear option if necessary, lest they be hit with the same sort of conservative barrage Bush has been pounded with over this nomination. Even if Bush believed that he couldn’t get a credible nominee through before, he certainly can now.

On the other hand, if Bush’s goal was to boost his approval rating and excite the base, Miers has still turned out to be a nightmare candidate. She was less popular than John Roberts right from the beginning and as of today, according to Rasmussen polling, her numbers have gone South. Only 30% of those polled say she should be confirmed vs. 34% who say she should not[2]. Keep in mind that those numbers are only going to continue to sink throughout the process as conservatives lob rhetorical grenades at her.

Oh, and if there are any hopes that the clamor on the right is going to die down, that seems to be highly unlikely. Here’s what the Wall Street Journal[3] had to say about the Miers nomination today:

“Although skeptical from the start, we’ve restrained our criticism of the Harriet Miers nomination because we’ve long believed that Presidents of either party deserve substantial deference on their Supreme Court picks. Yet it now seems clear–even well before her Senate hearings–that this selection has become a political blunder of the first order.”

The Editors at National Review[4] go even further:

“There is no good reason to keep going down this road other than the sheer stupid force of inertia, i.e. this is the nomination, so we’re stuck with it. Indeed, if Senate Republicans and conservative lawyers were being candid about their views of this nomination, it probably would already have sunk. This moment calls for leadership from Republican senators, who should go to the White House and insist that this nomination will not work and should be withdrawn. The White House is too insulated and reflexively defensive (note President Bush’s pique yesterday when asked about criticism of Miers) to figure this out on its own. Is this a difficult message for anyone to deliver? Yes, but that’s why we have senators and not White House automatons occupying the upper chamber of Congress.”

In fact, things have gotten so bad that even conservatives who have been supportive of the nomination, like Fred Barnes[5], are now admitting that this debacle is severely damaging Bush with conservatives:

“WHY have so many conservatives suddenly revolted against President Bush, nearly five years into his presidency? I think their split with Bush is ill advised, counterproductive, and in some ways childish. But there’s no doubt it’s happening and it’s serious.

…Can the broken relationship between Bush and conservatives be repaired? Certainly. It’s probably just a political phase anyway. And if Miers makes a strong case for herself as a judicial conservative during her confirmation hearings, the conservative anger will begin to fade. But there’s bound to be a residue of ill will, which means the rapport between Bush and many conservatives will never be quite the same again.”

Even though Barnes is not putting a happy face on things, he’s being overly optimistic. The biggest knocks on Miers have been that she’s a Bush crony, has no paper trail, is under qualified for the job, and isn’t reliably conservative. Even if she were fantastic in her hearings, how would it address those concerns? If she answers a Constitutional law question right, does that make up for never having been a judge? If she says she’s an originalist, are conservatives just going to accept that despite the fact that there’s no proof? No way! There’s just nothing that Miers can say at this point that will stop the storm other than, “I withdraw.”

Also, let me add that if anyone is thinking that Miers will be able to get confirmed, rule the right way on a couple of cases, and all will be forgiven, they’re delusional. Keep in mind that Anthony Kennedy and Sandra Day O’Connor go the right way sometimes, too, and Souter was more conservative in his early years on the court than he is today. That means even if Miers does make it to the Supreme Court, it’ll take YEARS for her to prove herself on the bench.

So, if Miers is confirmed, the complaining may die down for a little while, but it’ll be the start, not the end, of a feud between Bush and many of the people who used to be his biggest supporters. That’s why it makes no sense at all to keep pushing Miers. Even if Bush “wins” and she’s confirmed, he loses and the Party loses, by alienating so many conservatives.

This situation is so out of hand that it would be an incredible blunder NOT to pull this nomination. What’s the point of going forward with a nominee who is so widely disliked when you’re allowed to withdraw the nomination and select another choice? Politically, this should be the biggest no-brainer of Bush’s presidency. That’s why I still believe that the Miers nomination will be withdrawn. Either Bush will come to his senses, Miers will give up, or enough Republican Senators will promise to vote against her behind closed doors to force Bush’s hand.

If the Miers nomination is not withdrawn, I want her voted down for 3 reasons:

1) In my opinion, an under qualified crony like Harriet Miers does not deserve a seat on the Supreme Court.

2) We do get a do-over and although it’s possible Bush could make another bad pick, it’s unlikely that he could do worse than Miers.

3) Politically, Bush and our GOP Senators would be better off if Miers isn’t confirmed.

If Miers goes down in flames, Bush gets to make another selection and if he makes a wise choice this time, it would still help him a bit with the base (although not nearly as much as a withdrawl). Furthermore, Bush is being hurt politically because he made a terrible selection for the Supreme Court. I fail to see how having that terrible selection actually make it to the Supreme Court, where she’ll sit for the next 20 years, would be less harmful to Bush than having her rejected.

As far as the GOP Senators go, if they vote down Miers it’ll make them look principled and all the conservatives who are tearing into Bush today, will applaud them for taking a stand. But, what about the people who’re behind Bush (Miers has few fans) on this pick? Won’t they be mad? Yes, until Bush makes another choice and then — guess what? That’ll be Bush’s pick and then when the Senators support that person, they’ll be forgiven.

What it all comes down to is that this nomination has been, as Robert Bork called it, a “disaster on every level” and the best thing that could happen to George Bush, Republican Senators, and the GOP as a whole, would be for the Miers nomination to be withdrawn as soon as possible.

*** Update #1 ***: For The Truth Laid Bear[6]. I oppose the Miers nomination.

  1. already bombing out in relatively friendly, 1 on 1, meetings with Senators: http://www.nationalreview.com/york/york200510201613.asp
  2. 30% of those polled say she should be confirmed vs. 34% who say she should not: http://www.rasmussenreports.com/2005/Miers%20Confirmation_Oct%2021.htm
  3. Wall Street Journal: http://www.opinionjournal.com/editorial/feature.html?id=110007433
  4. Editors at National Review: http://nationalreview.com/editorial/editors200510211315.asp
  5. Fred Barnes: http://www.weeklystandard.com/Content/Public/Articles/000/000/006/235mjdqp.asp
  6. The Truth Laid Bear: http://www.truthlaidbear.com/archives/2005/10/22/call_to_bloggers_take_your_stand_on_miers.php#001717

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