Ed Morrisey of Captain Quarters has a good editorial in the Washington Post on the analysis of the conservative reaction to the Harriet Miers nomination. He divides the camps into the Loyalist Army and the Rebel Alliance and places himself between the two.
The Trench-Dwelling Dogfaces. Those of us who find ourselves torn between the unconvincing, unrelenting positivism of the Loyalists and the potentially destructive Rebel Alliance occupy a no-man’s land of political tiptoeing. We spend our blogging time raising our heads out of the foxholes to note the inbound missiles coming from both sides, and wishing the war would stop — really soon.
Despite our normal support for the president, we Dogfaces fail to recognize George Bush’s supposed brilliance in naming his personal lawyer to the bench, whatever Hugh Hewitt says. Even if Miers obviously has earned Bush’s trust, she just as obviously has done nothing remarkable to earn the trust of conservatives; being a mover and shaker in the American Bar Association doesn’t lend her much credibility among those who have watched that group get more and more politically activist in what we view as the wrong direction. Most of us have tired of the "trust me" approach. In short, we find ourselves with some sympathy for the Rebel Alliance.
One thing this nomination has highlighted is some inconsistencies or outright hypocrisy in some of the arguments conservatives have advanced before in defense of judicial nominees. We have argued previously that elections have consequences and that the President deserves to have his pick. We have put up in defense that Republican Senators had overwhelmingly voted for the confirmation of Ruth Bader Ginsburg on this principle. Yet now some are urging that senators not vote to confirm Edith Miers or that the President withdraw the nomination. As poor a choice as I think Edith Miers is she does not fall into the same category as Justice Abe Fortas whose nomination had to be withdrawn for Chief Justice. There is no personal scandal associated with Edith Miers and so the only rational the President currently has to withdraw the nomination is to admit that it was a poor choice. Which is very unlikely considering that he affirmed that is she is the "best-qualified candidate."
There is also the question as to whether the President picked her to appeal to the Evangelical base. Considering that it seems her nomination was somewhat vetted by some key Evangelical leaders ahead of time and that they were the first to up-to-bat on her behalf this seems to be a real possibility. Do we now have a religious test for Supreme Court nominees or as Mark Shea put it "an Affirmative Action seat for Evangelicals on the Bench, never mind their competence" If this was a factor in her consideration than it just makes a mockery of conservative’s arguments about not questioning the religious beliefs of justices and that they will act only on the law.
The President in this circumstance does not seem to have played base ball. That is playing ball with the base. His prominent and in no way ancillary pledge to give us more justices like Scalia and Thomas is in reality a "Read my lips, no more Souters" pledge. This nominationseems more like a bait-and-switch then being in keeping with his pledge. The whole "Trust me" thing sticks in the craw of most of us. This coming from a politician you mostly like is still not comfortable. Especially since he had appointed Norman Mineta as head of the US Department of Transportation and Christie Whitman as head of the EPA, his heart-reading abilities are surely in question. Surely he could easily have read the heart of Sen. Ted Kennedy ahead of time and realized that reaching across the aisle with the No Child Left Behind plan would yield no fruit of kindness in return only another bloated government program. The Reganeque trust but verify is more to my liking. Unfortunately there is not much to verify if anything as far a judicial temperament goes.
I have also now heard the argument that the President couldn’t pick one of the A-list nominees that were on the short list because they couldn’t get confirmed. That if we were to blame anybody is was the gang of 14 and the mushy Republicans on the Senate. There is a couple problems with this analysis. One is that it this argument has been offered by some of the same people who had rooted for somebody like at Mike Luttig or Mike McConnel. If there was no way a more conservative justice could get through than why was this analysis not offered up before hand? Now of course there are some pretty squishy conservatives in the Senate, but I think when push comes to shove that they would vote with the President. What good is having a leader if they don’t ever act like a leader. A military commander that acted only on the will of the troops would not be a good commander. A great leader shapes the will of those around them and persuades them to follow them.
So I find myself firmly agreeing with Captain Ed’s "Those of us who find ourselves torn between the unconvincing, unrelenting positivism of the Loyalists and the potentially destructive Rebel Alliance occupy a no-man’s land of political tiptoeing." I can easily hear the loyalists saying exactly the same things offered by the Loyalists if David Souter had been just nominated. The scorched-earth political tendency in the Rebel Alliance also leaves me unsettled. Maybe good will come out of this split. That is if the President gets the message that he shouldn’t try to pull off a similar pick again if given the opportunity.
I heard Scott McClellan say today regarding the press’s attention on the conservative spit that they should not focus on the one or two conservative voices against the nomination. Talk about spin and it is a sad day when I can agree with something that Chuck Shumer says.
"The idea that Americans shouldn’t know what the judicial philosophy of the nominee to this powerful, powerful position is, is wearing thin with the American people, whether they be liberal, conservative or moderate," said Sen. Charles Schumer, D-N.Y.