October 29, 2005
The choice of Harriet
Miers to be nominated to the Supreme Court, and her subsequent
withdrawal, shows that caution is sometimes the most dangerous
She was obviously
chosen cautiously as a "stealth" nominee -- someone
without a paper trail or a judicial record that could ignite controversy
-- in hopes of avoiding a confirmation fight that the Senate Republicans
had the votes to win, but had neither the unity nor the guts required
to make victory certain.
Harriet Miers was
a choice made from political weakness. Now she is gone but the
political weakness remains. So celebrations in conservative quarters
may be premature.
have already gained from the time lost with the Miers nomination
and they have every incentive to stall on the next nominee, to
make sure that nominee is not confirmed before Congress adjourns
at Thanksgiving. The longer they stall, the longer Sandra Day
O'Connor remains on the Supreme Court -- and she is their kind
of judge, one who makes policy instead of applying the law.
in the Senate have had their hand strengthened by this episode.
Even those who had their knives out for Harriet Miers can now
piously lament her withdrawal and claim that, while they might
have voted for her confirmation, they must now oppose an "extremist"
nominee chosen in response to the conservative groups that forced
Ms. Miers' withdrawal.
Any judicial nominee who has said that the Constitution means
what it says, not what judges would like it to mean, is going
to be called an "extremist." That person will be said
to be "out of the mainstream." But the mainstream is
itself the problem.
What is the point
of electing a President pledged to appoint judges who are like
Justices Scalia and Thomas, if the weakness of his own party's
Senators leads him to appoint judges who are like Justices O'Connor
and Kennedy or -- heaven help us -- David Souter?
If the Republican
majority in the Senate cannot bring themselves to act like a majority,
they may no longer be a majority if their base of support stops
supporting them at the ballot box.
The brutal fact is
that Senate Republicans have not had the stomach for a fight,
either during this administration or during the Democratic administration
While Senate Democrats
have not hesitated to obstruct the Senate from even voting on
some of President Bush's nominees to appellate courts, Republicans
gave an overwhelming vote of approval to even such a far left
Clinton nominee as Ruth Bader Ginsburg.
While it would have
been wrong to obstruct the Senate from voting on Judge Ginsburg,
there was no need for the Republicans to vote for her themselves.
If they thought that such cooperation would be reciprocated when
their party controlled the White House and the Senate, events
have shown that they were sadly mistaken.
that they were elected to do what those who elected them wanted.
But Republicans seem to think they were elected to make deals
with Democrats and gain media applause for doing so.
are a united minority, while Senate Republicans are a divided
majority, with prima donnas and opportunists ready to leave their
fellow Republicans in the lurch when a showdown comes -- even
if that means risking the whole party's loss of support among
voters who feel betrayed.
That is the hand
that President Bush has been dealt.
Harriet Miers was
his attempt to make the best of that weak hand. Now his conservative
base, having rejected Ms. Miers, expects him to nominate someone
with a clearly established track record of upholding the Constitution
as it was written.
But does the Republican
"majority" in the Senate have the guts for the battle
that such a nomination would surely set off? Are they prepared
to put up a fight and be satisfied with a victory on a close vote,
with perhaps Vice President Cheney breaking a tie?
Or is looking "statesmanlike"
in the liberal media more important to some Republican Senators,
either for its ego boost or for its practical political value
in running for re-election or for the Presidency in 2008?
can be "times that try men's souls" -- for those who
still have souls and haven't sold them.
2005 Creators Syndicate