On A Wing & A Prayer

Perhaps I'm just an embittered, middle-aged poop, but I'm not detecting a whole lot of center-right enthusiasm for Supreme Court Justice-designate Harriet Miers out in the ol' provinces.

Washington Times:

Miss Miers, by comparison, is an authentic stealth candidate. Her judicial philosophy is more of a mystery to the public than the philosophy of David Souter, who served on the New Hampshire Supreme Court for eight years, was before President George H.W. Bush nominated him for the Supreme Court in 1990. Conservatives unanimously regard the appointment of Justice Souter as disaster....

Senate Minority Leader Harry Reid, who has led the filibuster campaign against Mr. Bush's nominees to the appeals courts - and who opposed the Roberts nomination - recommends Miss Miers. Democrats, in fact, have good reasons to like her. She made the maximum individual contribution to the 1988 Al Gore presidential campaign. On the eve of the 1988 election, she gave $1,000 to the Democratic National Committee for the campaign of Michael Dukakis. Perhaps she has learned a lesson.

George W. Bush, like his father before him, had an opportunity to change the court. Americans who listened to his promises in 2000 and again last year had good reason to believe that he would not forfeit his opportunity. Perhaps he has not. We hope not. [emphases added]

Wow, I'm pumped now, aren't you?

Pat Buchanan (and when's the last time I've quoted him? [Hint - many, many moons ago]):

What is depressing here is not what the nomination tells us of her, but what it tells us of the president who appointed her. For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had - and not for the first time by a president by the name of Bush.

Ol' Paddy-Joe left the reservation for wackier pastures a decade and a half ago, but here it's like he never left. And let us remember again that Bush ran from a fight in a Senate in which his own party enjoys a double-digit majority. If we were talking about the Senate that, say, Clarance Thomas faced (56-44 Democrat), perhaps one could understand the reasoning behind going with Miers. But then again, Pappy Bush (no kamikaze he) sent Thomas - one of the constitutionalist pillars of the High Court - into the teeth of that Senate, didn't he? And he got confirmed, didn't he?

Tell me what Dubya's excuse is again?

Bill Kristol:

Roberts for O'Connor was an unambiguous improvement. Roberts for Rehnquist was an appropriate replacement. But moving Roberts over to the Rehnquist seat meant everything rode on this nomination - and that the president had to be ready to fight on constitutional grounds for a strong nominee. Apparently, he wasn't. It is very hard to avoid the conclusion that President Bush flinched from a fight on constitutional philosophy. Miers is undoubtedly a decent and competent person. But her selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.

Kristol also asks what the prospects now are for holding solid GOP majorities in Congress in 2006 if conservatives are demoralized. To say nothing of divided, which this SCOTUS pick accomplished instantly (even on this blog).

Fred Barnes:

All [Harriet Miers] needs to do is come off as a credible mainstream conservative, avoid the questions that Democrats will try to trick her on, and persuade senators she's not merely a Bush crony. That accomplished, she should be confirmed.

She'd better be able to do this. If she can't - if she's not really a conservative - the political effect will be to shatter President Bush's still-strong relationship with his base. The love affair will be over. The president will have dashed the hopes cherished by conservatives for a conservative Supreme Court. And he will be far weaker as a national political leader as a result.

The relationship is already shattered. The love affair is already over. He's already dashed our hopes. And he already is far weaker as a result. The rallying cry of the conservative movement for fifteen years has been, "NO MORE SOUTERS!" That meant appointing established constitutionalists. It meant no more guessing games. It meant building a Senate majority in order to win these confirmation battles instead of running away from them.

The President gave us Souter in a skirt - another cipher with no judicial philosophy or track record whom he thinks will be an improvement over Justice O'Connor, a conceit that cannot be verified until far after it is too late to rectify.

Even if she pans out, it will be years before we establish her bona fides. The political damage Bush has done himself by selecting her is already done.

What the heck, let's sample what the DisLoyal Opposition is saying about this pick.

E.J. Dionne:

Yet [Miers' status as a tabula rasa] may be enough to unsettle the liberals without satisfying the conservatives. The early returns from certain key conservative precincts were not good for Miers. Manuel Miranda, a conservative activist on judicial issues, said the choice of a nominee "with no judicial record'' was "a significant failure.'' William Kristol, the conservative editor and strategist, said the selection left him "disappointed, depressed and demoralized.''

With the Miers nomination, Bush is indeed signaling that after a summer of discontent over Iraq followed quickly by the Katrina catastrophe, he does not have the stomach for a big fight. He was not willing to spend his dwindling political capital either on behalf of his good friend Gonzales or for a justice in the mold of Antonin Scalia or Clarence Thomas, the duo whose jurisprudence Bush has often praised. The Miers pick risks looking like a sign of weakness.

Daily Kos concurs:

[T]his is the sort of pick that can have real-world repercussions in 2006, with a demoralized Republican Right refusing to do the heavy lifting needed to stem big losses. That Bush went this route rather than throwing his base the red meat they craved is nothing less than a sign of weakness. For whatever reason, Rove and Co. decided they weren't in position to wage a filibuster fight with Democrats on a Supreme Court justice and instead sold out their base....

[M]y early sense is that this is already a victory - both politically and judicially - for Democrats. In fact, it should be great fun watching conservatives go after Bush. He may actually break that 39-40 floor in the polls, given he's just pissed off the very people who have propped up his failed [sic] presidency.

Dionne in particular raises an interesting possibility - that lefty groups, unable to help themselves, will go after Ms. Miers anyway just because Bush appointed her (not to mention the irresistability of the cronyism angle), without the countersupport from the Right that Chief Justice Roberts enjoyed and which would have been instantly forthcoming on behalf of a Luttig, McConnell, Jones, or Garza.

Probably won't derail her nomination, but it would be hilariously ironic if Democrats AND Republicans effectively joined forces to kick to death a nomination expressly designed to be universally inoffensive. Makes me wonder who Bush would send up next.

Volokh makes a very incisive point on which to close this anti-Miers installment:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law. This is, of course, precisely why Bork was taken down as well. Rehnquist, by contrast, may have changed the voting patterns of the Court but did not change the legal culture through intellectual leadership. Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

Even Presidents named Bush, in other words, are not infallible.