[1]DALLAS (BP)–Supreme Court Justice Antonin Scalia was confirmed 98-0 in 1986. He recently told NBC’s “Today” audience that he’s not sure he would be confirmed in today’s Senate and he wouldn’t want to go through the process.
One year after Scalia’s confirmation, Supreme Court nominee Robert Bork was “borked” and the process has been broken ever since. A “fix” that began to take shape earlier this year would have allowed the Bush administration to avoid disappointing a large section of its base over his nominee, Harriet Miers. But a group of senators, led by Arizona Republican John McCain, stopped that from happening. President Bush was ill-served by this attempt to avoid a battle over the filibuster of his judicial nominees.
Many “movement” conservatives were furious at the nomination of Harriet Miers to the highest court in the land. The White House calculated that choosing her would avoid the fight conservatives have wanted for two decades. But the administration underestimated the depth and strength of conservative passion to change the courts.
Former Bush speechwriter David Frum explained his frustration with the Miers nomination in his National Review Online diary from Oct. 7: “George Bush has again and again called on conservatives to sacrifice for the success of his presidency.” It’s true. They were asked to hold their fire as Bush supported a budget-busting prescription drug plan, constitution-busting campaign finance reform, and when he called Islam a “peaceful religion”. Peggy Noonan, a former Reagan speechwriter, says this nomination is evidence that the president feels “free to stiff conservatives.” In Human Events Oct. 6, Ann Coulter revealed her fury that Bush ignored the “farm team of massive legal talent on the right” that has been nurtured and developed since the Bork battle by the likes of former Attorney General Ed Meese, Justice Scalia, and even Robert Bork himself. In the same publication Pat Buchanan lamented that Harriet Miers has “never declared herself with courage and conviction on any of the great issues.” There’s been much discussion of her “thin record” and the fact that her cases, for the most part, did not involve questions of constitutional law and many were settled out of court.
We can hope that the president’s close relationship with Harriet Miers and the fact that she’s evangelical and pro-life mean that she’d be a better vote on the court than Justice Sandra Day O’Connor. President Bush’s selection of lower courts judges who are proven strict constructionists and constitutional originalists is encouraging. But conservatives, hoping for a nominee with a track record of constitutional restraint with Roberts-esque firepower and persuasiveness, do not feel the president gave the court the best the country has to offer. They are correct.
The White House, though surprised at the strength of the opposition, must have anticipated the disappointment. So, why do this? Some say the appointment was made from weakness. It was not. President Bush may be embattled at the moment but he is not weak. He is a warrior who considered the weapons in his arsenal before deciding whether to undertake the battle conservatives wanted over this seat on the Supreme Court.
[2]Unfortunately he lost his most powerful weapon during the spring when the “Gang of 14” senators — seven Republicans and seven Democrats — made a deal that took the “nuclear option” off the table and left intact the rule allowing the filibuster of judicial nominees. If Senate leaders had won that rule change, the groundwork would have been laid for a smooth confirmation of Supreme Court nominees. Instead the filibuster remains a weapon in the Democrats’ arsenal to be used in whatever circumstance they define as ‘extraordinary.’ The White House calculated that the nomination of Harriet Miers, with her non-revealing record, could never be defined that way.
Harriet Miers was not the ideal nominee. But the ideal was not a possibility given the composition of the Republican majority in the Senate. There are not enough reliable votes to overcome the filibuster of a nominee with a conservative or pro-life track record. The moderate Republicans are needed to support the President in any battle to get rid of the filibuster, and they cannot be counted on. The president could have put a “short-lister” out there, anticipating perhaps a year of delay, filibuster, and maybe even a first-round loss. But with some key cultural cases coming before the courts, it’s crucial that O’Connor is replaced soon. Call it misstep or miscalculation. But that’s the political decision this White House made.
In a perfect world we would be able to rely on a 55-45 Senate to approve a strong originalist to the Supreme Court. But we live in a political world.
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Dexter is a conservative activist and a former co-host of Marlin Maddoux’s Point of View syndicated radio program. She currently serves as a consultant for KMA Direct Communications in Plano, Texas, and as a producer for Washington Watch Weekly, a broadcast of the Family Research Council.