The Price of Miers

One of President George W. Bush’s endearing qualities is his willingness, perhaps even perverse eagerness, to do what he thinks is right without regard to the political consequences. Although he does tact with the political wind when necessary, on core issues: the War in Iraq or his obligation to nominate judges for the Supreme Court, Bush seems to charge off in an independent direction. The selection of White House counsel Harriet Miers for the US Supreme Court may prove to be one such decision that comes back to haunt the President.

Ms. Miers has little public record against which to measure her judicial philosophy. George Bush is most comfortable dealing with people one-on-one and his close association with Miers has apparently convinced him that she shares his judicial philosophy. For the purposes of argument let us assume the Bush has an accurate read on Miers. Let’s assume that over the next 20 years, Ms. Miers out-Scalias Judge Antonin Scalia and makes Judge Clarence Thomas look as Liberal as Judge David Souter. Let’s assume she steers the Court squarely to the right powered by an engine of brilliantly written opinions for the Court. This represents a long-term advantage for the country and an important legacy for Bush. However, much the same could have been accomplished by another pick.

Assuming that Bush wished to bow at the altar of identity politics and wanted to appoint a woman to fill the seat vacated by Sandra Day O’Connor, there is a bench of female judges with clearly Conservative judicial records from Judges Priscilla R. Owen to Judge Janice Rogers Brown that would have enraged Democrats and elated Conservatives. President Bush has manufactured a “perfect storm” to move the Supreme Court to the right. Republicans have a strong majority in the Senate and have maneuvered Democrats into a political corner making it difficult to sustain a filibuster. Bush have could pick almost anyone he wanted, and Conservative lips were drooling in anticipation.

Now Bush picks a virtual unknown. He has to persuade fellow Conservatives that she is indeed picking a Conservative. Moreover, Conservatives are right to want a rock-solid judicial Conservative whose judicial philosophy has remained consistent over time. It is too easy for casual Conservatives to melt under the Liberal spotlight of Washington, where Conservatives are often lonely voices.

Even if Bush proves prescient in his choice of Miers, he will likely pay a price twelve months from now in the mid-term elections. It takes time for us to really know about a judge. Baring some spectacularly Conservative decisions led by Miers in the next year, Conservatives will have to swallow disappointment in grudgingly and reluctantly supporting Bush’s choice. Mid-term elections are often decided by the energy of partisans. Depressed and disillusioned Conservatives will not have the sort of energy required for a strong turnout in the mid-term elections. Miers had better prove to be as Conservative as Bush says she is because she is coming at a very dear political price.

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