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A Dilemma for the Democrats.--

It is becoming clear that the criticism of Harriet Miers is strong enough from both the right and the center that Democrats can oppose her nomination without paying much of a political price.

We learned in the Roberts nomination that some Democratic Senators were willing to find reasons to go back on their earlier assurances that they would support a "mainstream conservative," but not an extremist. When Bush nominated a mainstream conservative, John Roberts, fully half of Senate Democrats opposed his confirmation.

Now George Bush has nominated a weak choice for the Supreme Court, one without a strong judicial philosophy that might help her resist the pressures to "grow in office" in ways that would please the NY Times and the Washington Post.

Will Democratic Senators vote for Miers in the belief that, while she may start out as a conservative, she may eventually make the same move to the left that Justices Souter, Blackmun, and Stevens made? And, even if she doesn't, Miers may at least make the sort of move to the center that Justices O'Connor and Kennedy have made. (The fervor with which Bush asserted that Miers would not change her views after long service on the Court makes me wonder whether she promised him that she wouldn't change. But can anyone be expected to keep such a promise years from now?)

Or will Democratic Senators decide to try to stop the Miers nomination if they can? Although I think that Senate Democrats could survive the political fallout from a filibuster, in my opinion Supreme Court nominees deserve an up-or-down vote. It may take a few weeks for the politics to sort itself out, but getting some Republican defectors may be entirely possible. My best guess is that almost all Democratic Senators will at least begin by tentatively opposing Miers.

Jorge E Rosariopolanco (mail):
When David Letterman starts making jokes about the qualifications of a nominee to the Court, you know your nominee is in trouble. BTW during Bush's tenure as Governor of Texas, he had occation to name 4 Texas Supreme Court Justices, including Al Gonzales. During that same period, he appointed Miers to....the Texas Lottery Commision. This conservative says this nomination is an outrage. At least Al Gonzales was qualified, for goodness sakes!!
10.5.2005 4:05am
Dan1 (mail):
Why would they? Just for a win? If they block her nomination, Bush isn't planning to nominate a liberal...
10.5.2005 5:25am
Challenge:
"Now George Bush has nominated a weak choice for the Supreme Court, one without a strong judicial philosophy that might help her resist the pressures to "grow in office" in ways that would please the NY Times and the Washington Post."

Roberts said he had no judicial philosophy. So why weren't you up in arms over him? I agree his resume is stronger, but why so much emphasis on a "strong judicial philosophy" now? Maybe if my fellow conservatives were a little more vocal when Bush offered up blank slate number one, then we wouldn't be looking at blank slate number two right now.

Better late than never, however.
10.5.2005 5:35am
OpposeMiers (mail):
www.opposeharriet.blogspot.com
10.5.2005 5:53am
randal (mail):
Democrats have nothing to gain by opposing this nomination.
10.5.2005 6:27am
Medis:
I'd guess the Democrats will reason that the best possible outcome for them would be to oppose Miers with widespread popular agreement, and then have her be confirmed anyway. So I think their ultimate strategy will be dictated in part by how many Republicans seriously contemplate voting against her.
10.5.2005 7:56am
lyle (mail):
It's easy. If Democrats kill this nomination, then they have a chance to put off the confirmation until after the '06 elections and can hopefully pick up more Senate seats.

Given the GOPs less than stellar performance, this is very possible.
10.5.2005 8:50am
zzyz:
Justices Kennedy and O'Connor are in "the center"? Since when?

I love watching all the conservatives who argued that the president is entitled to some deference from the Senate during the Roberts confirmation suddenly reverse that view....
10.5.2005 9:04am
jgshapiro (mail):
The dilemma for Democrats is deciding whether she is a Souter or a closet Rehnquist. If she is the former, they should confirm her since they can do no better.

On the other hand, they have plenty to gain by defeating her if she really is conservative. A defeat further weakens Bush. A defeat keeps O'Connor around for most of this term, when cases will be heard on assisted suicide, abortion and campaign finance, among other causes dear to their hearts. Conceivably it also strengthens Democrat's chances in November 2006, but not if Bush gets a backup nominee through before the start of the next term.

But how can they know if she is really moderate or conservative? She has never written anything, and unlike Souter she has no judicial record to fall back upon. Her only record is protected by attorney-client and executive privilege, which Bush won't waive. She has stated moderate views on gays, women's rights and the ABA, voted Democratic and given money to Gore, but is also claimed to have had a political and religious conversion, to have the same judicial philosophy as Bush and to be very pro-life, if not actively so.

This is really just a roll of the dice -- for both sides, but more for Democrats than Republicans, since Bush nominated her and presumably is the one who knows her best.
10.5.2005 9:28am
Adam (www):
As one of those liberals, my thought right now is that we don't have to answer that question yet. What we need to do is sit back and let conservatives push this administration into proving up her ideological bona fides -- and then use each bit of evidence served up as ammunition with which to scrutinize and attack. In the meantime, just attack this nomination for the cronyism and insult to the Court that it is.
10.5.2005 9:49am
Igglephan:
Democrats can gain by opposition because they have a duty to see that the most qualified people sit on the court. Issues change, and that unsettles ideologies (look at Blackmun and Byron White). I think Miers is 100% political, not judicial. Where is the integrity of the process of judicial reasoning? I think McConnell or Alito could have been another John Marshall Harlan. Miers has never stood on her own two feet, defended her own views, really been her own person. It's one thing when O'Connor was breaking down barriers in the 50s, and having a slim paper trail still meant something. If Bush is going to nominate a conservative, either way, both sides should agree on one criteria: excellence. And if he's nominating someone older, then why not give Richard Posner the job he's earned?
10.5.2005 9:52am
roy solomon (mail):
We learned in the Roberts nomination that some Democratic Senators were willing to find reasons to go back on their earlier assurances that they would support a "mainstream conservative," but not an extremist. When Bush nominated a mainstream conservative, John Roberts, fully half of Senate Democrats opposed his confirmation.

Is John Roberts a "mainstream conservative"? This is subjective, so some who voted against him may not be going back on a pledge to confirm such.
Did every Democrat give such assurances? Not to my knowledge, so the fact that 22 voted against him is not necessarily indicative of acting in bad faith, unless you can cite otherwise.
My best guess is that almost all Democratic Senators will at least begin by tentatively opposing Miers.

Although you qualify this staement"almost", it's widely known that Harry Ried not only supports her, he recomended her. The statement from Nancy Pelosi was "I see no reason to oppose her at this time".
10.5.2005 10:15am
Taimyoboi:
"Democrats have nothing to gain by opposing this nomination."

From passing inspection, it would appear that while Ms. Miers does not have a judicial philosophy, she is quite a staunch pro-lifer (certainly more so than Roberts), which as I understand, is typically the defining issue.
10.5.2005 10:36am
Public_Defender:
For the moment, Democrats should generally be happy to let the Republicans attack each other, except that Democrats should reinforce the charge of cronyism many Republicans are making.

Democrats can use the cronyism charge not only for this nomination, but against other Bush policies. Democrats can point out how Bush's solution to a crisis always seems to include dumping taxpayer money on Halliburton (Cheney crony). Health care reform involved dumping federal money on Big Pharma. Social Security reform involves dumping big money on Wall Street fees. Etc., etc., etc.

The troubles of Bill Frist and Tom Delay reinforce the cronyism charges. If Democrats play their cards right, this nomination can throw a monkey wrench into Bush's entire agenda.
10.5.2005 10:48am
Alex R:
Did Democrats actually promise to support a "mainstream conservative"? Or did a group of Democrats, as I remember, merely promise not to filibuster such a candidate?

I think there is almost no chance of a Democrat-led filibuster, but many Democrats may vote against her...
10.5.2005 11:39am
Justin (mail):
I agree with Medis and Adam on this.

The best possible scenario is for Senators (once making sure she isn't a Scalia in sheep's clothing) is to make statements such as

"I think it unfortunate that Bush once again went to an underqualified crony to pick an important appointment whose decisions will affect the country as a whole. It is a sign of the GOP's corruption and Bush's failed decisionmaking. That said, I cannot see any particular reason why she fails the minimum qualifications, however unecouraging for the office, and is not an extermist. Thus, I vote to confirm the nominee."
10.5.2005 11:42am
Blar (mail) (www):
I think that Democrats are in a pretty nice position here. A few guidelines they should follow:

1. Do not filibuster
2. Encourage Republican infighting (mostly just by not interfering)
3. Criticize Miers in ways that connect to a coherent set of criticisms of Bush and Republicans (cronyism, etc.) without coming down too harshly on Miers herself
4. Let Senators vote their conscience (assuming that she'll get enough Republican votes to be confirmed)

If there is a possibility of Miers losing an up or down vote, then strategy becomes more tricky. Do they want the victory of defeating a Bush nominee? Or do they want to settle for the not-too-objectionable Miers in order to avoid the next nominee? This is a difficult choice, but it's a good choice to have.
10.5.2005 11:59am
belle waring (mail) (www):
This is a strange and rather sad case. On a purely political basis (speaking as a Democrat), I think it would be to the Democrats' advantage to support this nomination on the following grounds: while there is some chance Meier's views might "evolve" in ways pleasing to the left, there is zero chance that the views of hypothetical nominee B, a brilliant, principled coservative jurist will so change. Nonetheless, as an abortion-rights supporter who would not be pleased to see Justice Luttig and who will rend my clothes when Roe v. Wade is overturned, I have to say I think it would be better for the country as a whole and for the esteem in which the Supreme Court should be rightly held to have the best possible candidate on the court, even when I may disagree with said candidate in nearly every particular. The prospect of a "results oriented" reliable conservative jurist who has no intellectual firepower to back up her politically convenient judgments is distasteful, as is the reek of cronyism. I would prefer that my Senators oppose this nomination on the grounds that Meiers is unqualified, and then acquiesce to the nomination of a qualified, anti-abortion conservative. You lose elections, you take the lumps. That doesn't mean we have to countenance bogus tokenism and the appointment of manifestly unqualified justices.
10.5.2005 12:12pm
Ghost_of_Solon (mail):
I think this whole debate shows just how shrewd and manipulative Miers is. One the one hand, you have Bush saying "trust me...she's one of us," and that makes sense given that she has been there by his side during his ascent to power. She is not an unknown quantity to him and he is a creature of habit: reward those who help you and back you up through thick and thin. If he is wrong, then she must be one of the best actresses of this age. On the other hand, you have Pelosi and Reid giving her votes of support. Given that the Democrats have no guiding principle/strategy apart from "throw a monkey wrench in the GOP machine," why would they support her if they didn't think that she was another Souter or that she was some kind of double agent? Honestly, the best strategy for the Democrats is the one iterated above: start out with light opposition, let the blogger bloodhounds stir things up with the grass-roots conservatives so that voting down her nomination would not appear to be just another gutless example of contrarianism, hope like hell that you win the Senate back in '06, and then squeeze the lame duck President into putting forth an O'Connor clone.
10.5.2005 1:50pm
Adam (mail) (www):
Nonetheless, as an abortion-rights supporter who would not be pleased to see Justice Luttig and who will rend my clothes when Roe v. Wade is overturned, I have to say I think it would be better for the country as a whole and for the esteem in which the Supreme Court should be rightly held to have the best possible candidate on the court, even when I may disagree with said candidate in nearly every particular.

This is what I've been really wrestling with myself, and I do think I'd rather have Kozinski than Miers.
10.5.2005 2:03pm
Houston Lawyer:
It causes me great amusement that principled liberals and conservatives actually have basically the same objections to Miers. At least we can all agree that we would rather have seen a known quantity with stellar credentials. You can have a proper fight over that. But short of some bombshell revelation, I don't see how her nomination gets derailed.
10.5.2005 2:14pm
SimonD (www):
Given that the Democrats have no guiding principle/strategy apart from "throw a monkey wrench in the GOP machine," why would they support her if they didn't think that she was another Souter or that she was some kind of double agent?


Well, there are two competing theories here, aren't there. There are two reasons why the Democrats might want to "support" her publically. Either because they believe that she is, in fact, a Souter and realize that she's the best thing they're going to get, and don't want their base to get too up in arms about stopping her. Or because they believe that she is, in fact, a...Uh...Conservative judge, and think that by embracing her, they can administer the kiss of death.
10.5.2005 2:32pm
MarkW (mail):
Will Democratic Senators vote for Miers in the belief that, while she may start out as a conservative, she may eventually make the same move to the left that Justices Souter, Blackmun, and Stevens made?

There's far too much uncertainty involved in a situation like this to vote on such a basis. Moreover, none of the three Justices mentioned were even known for the sort of blind partisan loyalty that is clearly the reason Miers was selected. Blackmun was known, for a short time, for his extreme closeness to the positions of Chief Justice Burger (such that they were known as the "Minnesota Twins" on the Court), but that's not really the same thing.
10.5.2005 2:34pm
Ghost_of_Solon (mail):
SimonD:

I hope the Dems are smarter than that. They have yet to learn that they are not playing by the same rules as the Republicans. Conservatives will not decline support for Miers just because the Dems back her up. They do not buy into reverse psychology: a win, however watered down it may be, is still a win in their eyes.

Odds are the conservative loyalists will warm up to Miers (or at least choke back on their outrage) and accept her nomination.
10.5.2005 3:11pm
Challenge:
"And if he's nominating someone older, then why not give Richard Posner the job he's earned?"

Yeah, and conservatives would welcome that nomination? Get real.
10.5.2005 6:21pm