Democrats in the Senate missed a crucial opportunity over the disastrous four weeks of the Harriet Miers nomination. While her withdrawal in late October represents a failure of the increasingly embattled Bush political machine, it sets the stage for Republicans to reunite their base behind the illusion that the Right cares about credentials, while the Left opposes qualified nominees based on social and cultural litmus tests. Feckless as ever, the Democrats let their chance to dispel that destructive illusion slip away. And with Bush’s nomination of Judge Samuel Alito, they, and we, are going to pay for it.
Bush’s pick of Miers, his personal attorney and bosom buddy, to replace Sandra Day O’Connor on the Supreme Court seemed doomed from the beginning. Right-wing bloggers attacked the President with the type of vitriol they usually reserve for Michael Moore. All were quick to point out she had never served as a judge. The Wall Street Journal decried the choice as “cronyism,” Rich Lowry of the National Review called Miers “an affirmative action selection,” and the ever tactful Ann Coulter listed her qualifications, blending them with the resume of Bush’s dog Barney: “Loyalty, courage, never jumps on the furniture.” It seemed the unified front conservatives had been building since the 1970s was finally starting to fracture.
Harriet Miers may indeed have been unqualified to sit on the highest court in the land — her inability to answer a simple questionnaire on constitutional issues did not inspire confidence — but the mere fact that she had never served as a judge should not have foreclosed her candidacy. The justice most responsible for the court’s conservative turn, William Rehnquist, was appointed directly from his post as Deputy Attorney General, with no judicial record to speak of. Conservatives who demand strict interpretation of the constitution might question why, if the framers intended only judges to sit on the Supreme Court, did they not specify such a requirement?
Further, the record of “stealth” candidate John G. Roberts Jr. was equally opaque regarding his stance on major culture war issues. The difference was Roberts’ ability to impress senators with his sharp legal mind and his broad knowledge of constitutional law. There was never a question as to his qualifications. Republicans, expecting the Roberts nomination to be followed by the selection of a radical conservative, accused Democrats trying to delve into Roberts’ actual judicial philosophy of being obstructionist.
While the Right couched its attacks in questions about Miers’ credentials, the outpouring of anger from conservatives in fact stemmed from their uncertainty about where she stood on crucial social issues like abortion. Without a paper trail to verify her conservative pedigree, Miers represented a betrayal of Bush’s conservative base, who felt another Scalia/Thomas was their due for delivering the White House. The last straw was the release of a 1993 speech Miers had given to a Dallas women’s group in which she praised the democratic principle of self-determination. Hardly a controversial position, but cultural conservatives read it as an indication that a Justice Miers could not be trusted to overturn Roe v. Wade, the central aim of the radical Christian movement that now controls the bulk of our government, save the courts. It was a mere days after this revelation surfaced that Miers withdrew her nomination.
During all this mudslinging the Democrats licked their chops at the prospect of the Republican Party self-destructing. Few talked about the impact Miers might have on reproductive rights, civil liberties, and, most relevant to a former White House counsel, the power of the Executive Branch. Republicans were permitted to frame the discussion of the Miers nomination entirely around legal qualifications, thus shielding themselves from the accusations of obstructionism that they love to hurl across the aisle. It is understandable that no Democrat called for an immediate up-and-down vote on Miers on the Senate floor — the potential consequence was too serious — but in four weeks of the Right blatantly applying their own litmus test to block a nominee, there was barely any official mention of the irony.