Commentary: What’s next?
Just 24 days after President Bush nominated Harriet E. Miers for the Supreme Court, the politics of replacing Justice Sandra Day O’Connor has changed markedly. The President appears to have less flexibility about what he does next, and the moderate Republican senators probably gain some power to determine the fate of a new nominee. The Democrats, on the other hand, may not realize much advantage, if any. Much will depend, though, on what the mood is in the White House as the selection process reopens.
As Miers’ nomination got into deeper trouble, some observers who are close to the President had said that it would come close to wrecking this presidency if he were forced to back down on Miers. That perhaps was an exaggeration, but the President, already newly vulnerable because of the hurricane disasters, the Iraq war, and the criminal investigation focused on figures high in his government, is perceived to have less political authority than he had even at the beginning of this month. He may not be in the mood, or have the “political capital,” to wage another costly battle over the Supreme Court seat.
At the same time, however, the President undoubtedly is angry about having been forced to give up on Miers. His announcement (a decision he attributed to Miers’ preference, not his) was restrained, but reflected keen disappointment. Because it was the most conservative elements of his political following that brought this about, he may be determined not to surrender by going to a nominee more clearly in favor with that sector.
Still, the best way to taunt that group — naming Attorney General Alberto Gonzalez, unpopular with many conservatives — may not be available to him. Gonzalez’s nomination would run into the same problem that the President cited in withdrawing Miers’ name: his unwillingness to give senators access to internal White House legal papers. The attorney general was White House Counsel just ahead of Miers, and he had more tenure and more influence in the job than she did, and senators surely would demand access to materials showing Gonzalez’s role in the Executive Mansion, just as they did with Miers.
If the President goes with his instincts, he will want a conservative nominee, but someone reasonably close to him but not as close as Miers has been; the charge of cronyism is part of what damaged Miers’ chances. But there are risks in that strategy now: the President as a political matter may have to reach beyond the circle of people he knows well, since his own expression of faith in a nominee’s qualifications has now been shown to be insufficient.
Ideologically, though, he does not want to reach too far beyond an already short list of dependable conservatives, because he has made it clear repeatedly he wants a nominee for the Court who has what he calls a “conservative judicial philosophy.” The more predictably conservative a new nominee is, however, the President may risk the appearance of rewarding the very activists who fought off the Miers nomination.
Moreover, the President, with his flexibility seemingly diminished, may need to make a choice that is wholly acceptable to the moderate Republicans in the Senate. If, for example, the President were to put forward Circuit Judge Priscilla Owen, a known conservative, she may not be fully acceptable to those moderates, and he would need their loyal support in the face of a likely Democratic filibuster. The Democrats appear willing to risk a new challenge to filibuster-tolerant rules of the Senate in order to thwart a nominee they would find too conservative.
The solution to this array of dilemmas perhaps would be for Bush to find another John Roberts, an individual with undoubted qualifications, an intimacy with constitutional doctrine, and a most affable personality. The lesson of Roberts’ relatively easy confirmation as Chief Justice seems more vivid now. With all of the President’s other troubles now, that may be quite an attractive prospect.
The President said on Thursday he would name a new nominee “in a timely manner.” Even if that occurs promptly, there is no chance the Senate would be able to clear the nomination in time for a new Justice to join the Court for the early November sitting, and little chance for the late November-early December sitting. Thus, it is very likely that Justice O’Connor will be on the bench through at least the end of the year. And as a result, the desire of Bush followers to have O’Connor replaced before the Justices take up the new abortion cases on Nov. 30 appears to have been frustrated by Miers’ withdrawal.
I tend to disagree that the President is less flexible now. If the past is any guide, this administration’s strategic cunning is not to be misunderestimated. That’s not to say Miers was a sacrificial lamb, but I wouldn’t be surprised if this eventuality were at least considered and weighed. Assuming a mainstream follow-up nomination, just about every Republican Senator is likely getting ready to bear hug him or her, and the left is left in a position to decide whether to launch Nominee Attack III or resist undue combativeness, given that it was Harry Reid’s own endorsee that they just helped shoo away with their zealous documentary demands. At least that’s how I’d be looking to sell it, if I were a savvy White House strategist whose legal distractions finally seem to be lifting…
Comment by Flip Pidot — October 27, 2005 @ 10:50 am
How about former SG Ted Olson? He is close to the administration and WH but not so close as Miers. Plus her age lessens the previous skepticism of his age. And he has good credentials on the War on terror, which will be of paramount concern to the President. I also doubt either the Left or the right in the Senate can make much of a complaint about him.
Comment by Trespass — October 27, 2005 @ 11:00 am
Flip: I’m not sure what you mean by “undue combativeness”, and whether you attribute this to the Democrats with the Miers nomination. Because it is clear that it was the right wing that pressed “zealous documentary demands” on the White House to ensure that Miers would pass their abortion litmus test. They didn’t get these documents, instead finding a 1993 speech by Miers indicating some sympathy for rights to an abortion, so they sunk the nomination.
It also seems clear that the Administration IS weakened, and considerably so. The Miers nomination in particular split open the Republican moderate and extreme wings to the point where one side will not give in to the other. I’m at a loss to name a nominee that would please everyone. Perhaps a respected minimalist like Judge Michael McConnell (though he has a long paper trail).
Comment by Hoyapaul — October 27, 2005 @ 11:29 am
Nominate a true conservative and let the ideological battle royale ensue. It’d be good for everybody. These are not times for pussy-footing around with issues of historical import.
Comment by Chaz MarteL 732 — October 27, 2005 @ 11:33 am
I wonder whether Justice O’Connor might now decide to make her retirement effective on a date certain (sooner rather than later), instead of “effective on confirmation of successor.” Surely she doesn’t relish either (a) staying indefinitely, or (b) sitting for November and December arguments only to find that someone is confirmed in mid-January thus making that effort on her part (almost completely, at least) pointless. Any thoughts?
Comment by Casper — October 27, 2005 @ 11:40 am
Semi-procedural question: will SOC be writing any opinions this term? I assume that she wouldn’t have up until now, out of concern that she might not still be on the court when the decision is handed down and all of her (clerks’) work would be wasted. But now, with her replacement likely not on the Court before next year, will Chief Justice Roberts start assigning her opinions if she is in the majority?
This could matter in a number of cases up for this term, most obviously in Ayotte and possibly the FAIR case. Does Harriet Miers going down mean that we’re going to get a restatement of Casey’s veneration of stare decisis? Could Justice O’Conner serve long enough to give us another branch for the Lemon test? And, on another note, what happens to SOC’s clerks?
Comment by cjd — October 27, 2005 @ 12:26 pm
This commentary is spin — very interesting spin, but spin nonetheless.
What is interesting is that beneath the sophistication is the subtext: “Bush is weak.” “Bush needs to pick someone who is ‘not ideological.’” “Bush better not offend the big, powerful (Democratic and moderate Republican) senators.”
Bush has nothing to gain by kissing up to those who wish him ill and want to do him harm, and nothing to lose with those who matter to him and felt betrayed by the Miers nomination by picking an “ideologue,” like, say, Janice Rogers Brown.
The worse that could happen is that the nomination could get rejected after a bruising fight.
There is plenty of precedent for a President having his initial nominee bounced and then picking someone even more ideological.
Comment by grl — October 27, 2005 @ 1:58 pm
Judge McConnell would be a good nominee. Putting up a CINO or a cypher would be a disaster.
Comment by Scipio — October 27, 2005 @ 2:08 pm
The problem with that analysis is that it assumes that there was significant Republican support for Miers. At best, there was lukewarm support for the President’s perogatives.
Bush can choose to unite the party with a solid (female) conservative, or he can stubbornly persist with someone like Gonzales. His worst possible move would be to choose someone with a strong Christian agenda who was weak (or wrong) on the issues that other Republicans care about. That would split the party badly, if not irrevocably.
On the other hand, if he “caves in” to the majority of his party (small government conservatives) and picks someone from that tradition (e.g. JRB), he can have a united party at his back. Remember that the reason these people tolerated Bush’s straying from the “true path”, and voted in droves last time, was to pack the Court with conservatives. He renigged once, at great cost. Twice would be fatal.
Comment by Kevin Murphy — October 27, 2005 @ 2:26 pm
As to Pidot’s comment:
I’m not sure the left is up to Nominee Attack III yet - I think this next one would be II. Documentary demands from the left? Well maybe, if you ignore the conservatives on the SJC - that seems like a tall order for any spin doc. but agreed, never underestimate the WH’s cunning…
Comment by Aaron Ostrovsky — October 27, 2005 @ 2:28 pm
Seems to me if the Democrats wish to have some sport at this point, Harry Reid should rear up and inform the White House that NO nominee from a President whose decison making capacity has been so called into question (by a skein of bad decisions from yellowcake to invading Iraq to appointing Brownie at FEMA to Miers)is acceptable, and Democrats will filibuster ALL nominees. Take the issue to the public and call the Republicans bluff on the nuclear option. With the Democrats poised to take over the Senate in 06 (thanks to Mssrs. Bush, Rumsfeld, Rove, Libby, Cheney, DeLay and Frist), voting to abolish the filibuster could be a very risky proposition for Republicans with an eye to the future. Sandra Day can stay on the bench until a grownup occupies the Oval Office.
Comment by bobdevo — October 27, 2005 @ 3:03 pm
Of course the president is week. If he had the political capital to get her on the court, he would have gotten her there. But he doesn’t have the political capital, and so he didn’t accomplish his goal.
Viewed against the background of his failure to move his Social Security agenda, his failure to secure Iraq, his failure to respond nearly adequately to Katrina, and his failure to keep his homeboys out of the pokey, it’s no wonder that his GOP colleagues have come to understand that Bush worship is something for the rank-and-file GOP voter. To the GOP movers and shakers, party discipline has become a liability, and the president has revealed himself as just George who can make a really bad decision as often as anybody. I have no doubt that many national politicians, Republican and Democrat, are now regretting that they didn’t act out and speak out against Bush much sooner, or more strongly than they had– while others are simply consoling themselves that at the time, they just did what seemed wise relative to how things looked like they were going with this administration over the past months and years.
What the Democrat national politicians need to do now is step into this hole in a really big way, with something affirmative and positive. They have to demand something that makes perfect sense, but that the GOP administration will certainly not budge on. The Democrats on the Hill should unite in asking that the president request Justice O’Connor to stay on the bench longer, or, that all documents pertinent to any future nominee requested by the senate be promptly turned over. The Democrats should start saying that the president is turning the nomination process into a mockery. And, they should make sure that people understand that the real story here could have been the naughtiness that Miers may have been involved in. Who’s to say that’s not why the nomination was withdrawn? Why allow all the spin to stand untested?
Comment by Swan — October 27, 2005 @ 10:17 pm
According to John Fund earlier this week in the Wall Street Journal, the real reason Sixth Circuit Judge Alice Batchelder was not chosen earlier had to do with Ohio politics. Now Batchelder is reportedly being reconsidered for the Supreme Court. For those interest, the details of the rivalry between RNC co-chair Jo Ann Davidson and Batchelder’s husband, Bill, may be found here:
http://red-state.com/1005/102805.htmlComment by Michael Meckler — October 28, 2005 @ 3:30 am