Wednesday, October 19, 2005

Make the best of Miers' nomination

Commentary by David Reinhard


David Reinhard

How many ways can some conservatives say they're disappointed in Harriet Miers' nomination? How often can some conservatives say they're disappointed, downcast, dispirited, deflated and even angry over President Bush's selection for the Supreme Court? How many times can they call it a mistake, an error, a blunder, a missed opportunity? Or set forth the reasons Miers is not the most qualified candidate for the job? Or list their own preferred picks for Justice Sandra Day O'Connor's seat?

Edith Jones, Samuel Alito, Priscilla Owen, Janice Rogers Brown, Michael Luttig -- there, are we having fun yet?

OK, many conservatives were disappointed. I was disappointed. Many wanted a real scrap over judicial philosophy. Part of me would have enjoyed a good brawl. Conservatives can easily come up with better credentialed nominees than Miers. I can, and, unlike many of those named above, one of my faves, Judge Diarmuid O'Scannlain of the 9th Circuit Court of Appeals, probably could win Senate confirmation.

OK, have a good cry. Push pins into your David Souter dolls. Heck, maintain a proper skepticism about Miers' nomination and await the Senate confirmation hearing, where she'll have to show her stuff.

But, more than two weeks after Miers' pick, isn't it time for disappointed, disgruntled, dispirited conservatives to pipe down? Their point has been made; they're now into endless recycling and regurgitation. Some conservatives are now at risk of acting like, well, liberals.

Yes, those are fighting words, but how else to describe the response to Miers of some of the conservative commentariat? There's whining and narcissism. There's an unbecoming air of "we know better" superiority and arrogance. There's the snarky snideness and condescension when it comes to Bush. And, finally, there's a failure to offer viable alternatives. It's all so very Air America.

One of conservatism's attractions has always been its adult acceptance of the world we find ourselves in rather than a juvenile insistence on the world of our fantasies. Conservatives should start accepting the reality of Miers' nomination and making the best of it. If they think Bush is going to withdraw her nomination or allow her to bow out, they haven't been paying attention these last five years. Either that or they're a lot less smart than some seem to think they are.

Beyond what's now the blunt fact of the Miers nomination, conservatives faced two "givens" going into this Supreme Court pick. One, Bush felt compelled to name a woman. Two -- and not altogether unrelated to the first given -- Bush faced some dicey Senate confirmation politics this time around.

A mix of Senate Democrats and squishy GOP Senate "moderates" -- Maine Sens. Susan Collins and Olympia Snowe, Rhode Island Sen. Lincoln Chafee, for starters -- would make it tough, if not impossible, for a nominee, male or female, who was on record opposing Roe v. Wade and abortion on demand.

You can debate whether Bush should have felt the need to name a woman or some "diversity" pick. I can argue it both ways; I end up favoring judicial conservatives who make the court look more like America. It's harder to argue that Bush should ignore the distinct possibility that the Senate would defeat a nominee who was more to the liking of conservatives. Unless they don't care about a Bush nominee going down in flames and actually think a principled defeat would be a good thing, it's incumbent on conservative complainers to show us the Senate votes required to confirm their favorite candidate.

Sorry, but Bush has earned the right to want his pick to have a good shot at confirmation. Sending up a likely loser would be unfair to the nominee and unhelpful to the cause of judicial conservatism. A loss would only embolden Bush's enemies on the left, irk GOP moderates and make things harder for the next pick. The guess here is that most conservatives would rather be disappointed at a nominee's appointment than her rejection by the Senate.

True, the White House response to the initial conservative reaction hasn't helped calm things down. Team Bush ought to stick to selling their nominee rather than characterizing conservative critics. In short, they should stifle themselves, too, rather than suggesting conservative critics are "elitist" or "sexist" because they question Miers' credentials on several counts. The questions are about experience and expertise rather than Ivy League educations and Supreme Court clerkships.

Moreover, it's hardly "elitist" to ask whether Miers has the background to serve on perhaps the nation's most elite institution. As for sexism, the charge is laughable. A nominee who had been the president's personal lawyer and White House council for only a while would be under more far more scrutiny if his name was Herb Miers.

Worse, charging elitism and sexism against the right sounds so very left.

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