Wednesday, November 2, 2005

Miers: bad pick, proper goodbye

Commentary by David Reinhard


David Reinhard

Remember the first day of the Harriet Miers nomination? After an early-morning White House announcement, President Bush's Beltway-and-blogosphere base exploded, and with good reason. There was instant disappointment and anger. Bush's mistake, missed opportunity, even betrayal produced the gnashing of teeth, rending of garments and heaving of volumes of the Federalist Papers on the right. Conservative bloggers blogged a blue streak. Conservative commentators cut up the pick in a cold fury. The initial "Trust the President" sales pitch only made matters worse by day's end.

Remember that day? It turned out to be the best day of the Miers nomination.

Things went downhill from there. The complaints never stopped, even after they grew tedious in their repetition. George Will, Robert Bork, Bill Kristol, Charles Krauthammer and Rush Limbaugh hurled Olympian thunderbolts. Former Bush speech writer David Frum circulated a petition, and forces on the right -- not the left -- launched anti-Miers ads.

Not that the Miers backers didn't do their bit. The White House dismissed her foes as "sexist" and "elitist" -- charges conservatives usually receive from liberals. Her responses to the Senate Judiciary Committee were deemed "inadequate" and returned for a "do over." Her meetings with senators were unimpressive. With so much hanging on her confirmation hearings, she offered no comfort that she would wow anyone, especially with questions coming from the left and right.

Except for this, the Miers nomination was in great shape.

It actually was in one sense: Grassroots GOP groups remained open to Miers despite the hubbub. Folks at Arizona town meetings, Sen. John McCain told me, wanted to give her a chance. As for Oregon, the conservative opposition at the federal level never translated to conservative opposition at the grassroots.

Still, conservative opposition at the federal level is not nothing when the only real game is securing 51 Senate votes. "This is really inside baseball," says Oregon Sen. Gordon Smith, "but the noise inside the Beltway ballpark is very loud."

This noise reached new heights and the nomination new lows Thursday when the Washington Post reported on a 1993 Miers speech to the Executive Women of Dallas. There she spoke on abortion, "self-determination" and the role of the courts in a way that could only please someone satisfied with liberal boilerplate. The only problem was that Miers had to please conservatives, since conservative support was always crucial to her confirmation. Twenty-two Democrats had refused to vote for John Roberts. More would oppose an underqualified pick who had made other "pro-life" statements.

About the only thing supporters could say about Miers was that she would likely make a better Supreme Court justice than nominee. Bush trusted her. Miers' supporters trusted Bush. But the 1993 speech called all this into question.

In addition to being pedestrian, her remarks seemed tailored to her particular audience. Were her 1989 anti-abortion answers to a pro-life group designed to please a different audience? How did the speech's section on judging square with the views on judicial restraint she says she holds today and has held since early in her career? Does she tailor her views to the crowd at hand or, more innocently, simply take on the views of her current colleagues? How would she rule after the Bush administration is a memory? Would she become a Justice David Souter in heels?

Because her main claim to fame as a judicial conservative was her work in the Bush White House, she was in an impossible spot. Documents from her work there might bolster the case for her nomination, but handing over confidential White House records would intrude on executive privilege and harm a president's ability to receive advice from aides.

For all her deficiencies as a Supreme Court nominee -- deficiencies Bush ignored in this mistaken selection -- Americans came to know an accomplished and decent woman during the last weeks. On the day of her withdrawal, they came to see another aspect of her selflessness. "I think she showed real loyalty to the president and the principle of executive privilege and confidentiality," Smith says. "The issue became bigger than Miers."

In the end, the best day of the Miers nomination was the day she withdrew.

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