October 13, 2005
Republicans Battling Over Miers

By John Avlon

The war that has broken out in Republican ranks after the nomination of Harriet Miers is an unwelcome sign of the times: any evidence of moderation is regarded as ideological betrayal.

The cipher of Harriet Miers is not the ideological slam dunk conservatives had long hoped would tip the balance of the court from the center to the right. They feel their revolution has been betrayed. On "Meet The Press" this weekend, Patrick Buchanan said the president "has retreated from Reaganism into the old politics of compromise and consensus."

Only in today's twisted politics could the classic democratic virtues of compromise and consensus be dismissed with little comment or consequence. These are not signs of weakness but signs of the democratic process at work.

The name of Reagan is often invoked by conservatives, but it is conveniently forgotten that he nominated the centrist votes of Justices O'Connor and Kennedy to the Court, as well as Scalia. In this spirit, it is also worth remembering that seven of the nine justices of the current Supreme Court are Republican appointees. If they have been more moderate than some conservatives had hoped, that is a function of the liberating effect of lifetime appointment rather than any intentional ideological betrayal.

For all the conservative fury being directed at Harriet Miers, however, there is very little to evidence to suggest that she is secretly centrist. She is the White House counsel of the most self-identified conservative administration since Reagan and a quarter-century convert to an evangelical church in Dallas that explicitly opposes abortion as a matter of faith.

As a member of the Dallas City Council in the late 1980s, she donated to an anti-abortion fundraiser, and encouraged the local Bar Association of which she was president to consider holding a membership vote on the subject, opening doors for dissent against Roe v. Wade. Most significantly, her campaign manager for the 1989 City Council race, Lorlee Bartos, was interviewed by the Associated Press and said that Ms. Miers was pro-choice in her youth, but shifted her beliefs after her evangelical experience and is now "on the extreme end of the anti-choice movement." There is ample reason to doubt her support for Roe v. Wade.

It is true that she was a registered Democrat in the 1980s, but a conservative Texas Democrat in the John Connally rather than Michael Dukakis mold. At the time, the shift of the South toward registering Republican was still ongoing, and Miers's own political evolution is emblematic of this trend. Conservative critics for whom this is heresy forget that Reagan himself was a registered Democrat until middle age.

More alarming to influential aggregators like the Drudge Report was the news that Ms. Miers had donated $1000 to Al Gore's 1988 presidential campaign. But as tough as it may be to remember or believe, 38-year old Senator Gore was campaigning as the comparative conservative in that year's Democratic primary pack, a self-described "raging moderate" whose wife was busy attacking the excesses of rock music. In addition, Ms. Miers gave more than $16,000 to Republican candidates.

Conservatives can rightly complain that with control of the Congress and the White House this is a rare opportunity to run the table with a demonstrably conservative nominee, but the American people are less hungry for ideological battle.

The rise of the stealth candidate strategy - where less judicial experience is an asset for Supreme Court nomination - is symptom of the ruthlessly partisan atmosphere that permeates Senate hearings today. If accepted as a wholesale strategy, it has the absurd effect barring the most qualified justices from the highest court. But President Clinton nominated Justice Breyer - a judicial moderate with extensive experience on the bench - and he was handily confirmed by a Republican-controlled Congress. President Bush has no effective Democratic congressional check on his influence, so the reason for his strategy is unclear unless he rightly gauged that the American people are not ready to support an overt overthrow of abortion rights under federal law. The stealth game then sets up both sides to feel betrayed at different times.

There is another reason this pick has been a political disaster to date. The president - either defiant or tone deaf - walked straight into the prevailing winds of a news-cycle concerning the cronyism of high appointments in his administration. Just weeks after "Heckuva Job Brownie" bungled the immediate Hurricane Katrina response and was found to have no previous disaster response experience other than being buddies with Joe Allbaugh, the president picked his personal lawyer for the Supreme Court despite the fact that she had no previous judicial experience. As a result, the worst stereotypes of his administration - secretive, cliquish, and unserious - appear to be confirmed. The key difference is this time the critics are conservatives.

Democrats have been lying back for the past week, enjoying the spectacle of the Republicans at war with one another. In their partisan delight, they may be ignoring the reality that in the end, they may have the more substantive grounds on which to oppose the nomination, especially as it concerns preserving the federally protected right of a woman to choose.

The rational reason to oppose the Miers nomination is not reflexive application of any litmus test of left or right, but the inherent arrogance of the stealth pick process and credible accusations of cronyism. The odd nominee and the intra-party fight about her ideological fitness to serve are symptoms of our distracted and divided time.

John Avlon is a columnist for the New York Sun and the author
of Independent Nation.

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