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October 04, 2005
A Stealthy Court Pick
President Bush caught everyone off guard when he announced that White House Counsel Harriet Miers was his choice to fill the vacancy on the Supreme Court left by the retirement of Sandra Day O’Connor. Miers, who had been vetting candidates for the position, ended up with the job herself, much in the same way Dick Cheney got onto the ticket in 2000.
Since Miers has never been a judge, Democrats have no record to attack. Instead, they circulated a talking point that the choice smacked of “cronyism.” NBC’s Katie Couric led off with it shortly after the nomination was announced and repeated by reporters throughout the day. ABC’s Terry Moran used it during the White House press briefing and MSNBC’s Chris Matthews said it so many times it sounded like a chicken clucking.
Oddly enough, cronyism wasn’t the Old Media’s cry when a president’s wife was put in charge of a government takeover of the national health care industry or the entire staff of the White House travel office fired to make room for political supporters.
Conservatives are up in arms because Miers does not have a known judicial philosophy. She is not one of the judges that the Right views as the payoff for supporting Bush for another term. They wanted another Antonin Scalia or Clarence Thomas. Pricilla Owen and Janice Rogers Brown were favorites of the movement conservatives because their views are well known. They’ve been gearing up for this fight for a long time, to avenge Robert Bork and compensate for David Souter.
Rush Limbaugh said that the pick was made “out of weakness.” Bill Kristol said he was “disappointed, demoralized.” Ann Coulter called Miers a “complete mediocrity.”
I have to confess I wanted a nominee that would be the “stick in the eye” that Senate Minority Leader Harry Reid warned the President would trigger a filibuster. Like most conservatives, I have grown weary of how the Democrats continue to assert their relevance in governance when voters have removed them from power and reduced their numbers in three successive elections.
When you peel away the top layer of beltway bloviation, the brilliant strategy becomes easier to see. Bush has worked closely with Miers for over a decade and knows her philosophy. Conservative critics point to her campaign contributions to Democrats in Texas in 1988 as some indication that she might have liberal tendencies. That may trouble some, but I am encouraged, since I know that a convert to a cause seems to adopt its principles with greater fervor than those who come to it naturally.
If you view political strategy as war, as I am sure Karl Rove does, the Miers pick makes perfect sense. Her lack of a record makes Democrats focus on other aspects for clues to her philosophy. Initially, their plan of attack will be to demand information about her work in the White House, initiating a battle over Executive Privilege, which is technically attorney-client privilege, a battle they will lose. Ultimately, they will focus on her religious beliefs. Miers is an evangelical Christian, something that liberals view as a disqualifying factor. There is great peril in pursuing this strategy, since the insinuation that Democrats would employ a religious litmus test to will only serve to rally the conservative base. Think Bill Pryor.
She will be confirmed, probably as easily as John G. Roberts. Thus, the balance of the Supreme Court is effectively tipped to the right. Where O’Connor sometimes sided with the liberals on 5-4 decisions, Miers will not. The battle for the Court will be won at that point. Strict constructionists will be in the majority and a long period of judicial activism will come to an end. When conservatives stop to think about it, they will be comforted by what Bush has achieved. He will have delivered the Court he promised, without the political bloodshed everyone assumed would take place. A principle of Sun-Tzu is to have won the war before the first shot is fired.
The real fireworks will come next year, when the mid-term elections begin to heat up. This is where the long-awaited political battle will be fought. Liberal Justice John Paul Stevens has signaled that he would retire soon. If he steps down at the end of the current term, a red-meat conservative will be nominated, that Democrats will be hard pressed to defeat. Their base will demand a bloody war that Senate Democrats can’t win. Vulnerable Democrats in red states will be forced to choose between supporting a filibuster led by Charles Schumer, Ted Kennedy and Barbara Boxer and getting re-elected. Think Tom Daschle.
Bush is once again being “misunderestimated.”
Posted by jeffgannon at October 4, 2005 11:30 AM
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