The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their "extra-constitutionalism." The president flinched.
Wall Street Journal editorial:
Instead of a fight over judicial philosophy, we're having a fight over one woman's credentials and background. Instead of debating the Kelo decision's evisceration of private property rights, we are destined to learn everything we never wanted to know about the Texas Lottery Commission.
The president would have been politically better served by what Pat Buchanan called a bench-clearing brawl. A fractious and sparring base would have come together arm in arm to fight for something all believe in: the beginning of the end of command-and-control liberalism on the U.S. Supreme Court. Senate Democrats, forced to confront a serious and principled conservative of known stature, would have damaged themselves in the fight. If in the end President Bush lost, he'd lose while advancing a cause that is right and doing serious damage to the other side. Then he could come back to win with the next nominee. And if he won he'd have won, rousing his base and reminding them why they're Republicans.
Had the president gone with Luttig, we'd all be rallying now, but the left would be completely up in arms and we'd be facing a dramatic filibuster and the nuclear option. Fine with me. I think that in the end, that huge battle might indeed have changed the culture and have actually helped the president's popularity.
I must admit that was anticipating such a confrontation myself and thought that the hearings of a Supreme Court nominee would have been a good education for the public on the differences between conservatives and liberals on judicial thought. [sic] I think that that is a contest that the conservatives can win if they can get their message out, but that is unlikely to happen except in the spotlight of a Supreme Court nomination.
The skeptics [of the Miers' nomination] also believe that since President Bush won re-election and there are 55 GOP senators, it was high time he pick a strong originalist. Sure, that would bring on a "nuclear battle" in the Senate. But they were prepared for that and confident Mr. Bush could win that battle, even with a few defections from the GOP Seven of the tyrannical Gang of 14.
They would welcome that nuclear confrontation, not because they're pugnacious sorts and not because they want to rub Democrats' noses in it. Rather, it's because they believe we're past due for a public debate on the proper constitutional role of the Court.
This is arguably the most disappointing aspect of this nomination. For decades, Republicans have been playing defense in the fight against judicial activism. With the nomination of Miers, President Bush chose to yield at a time that is ripe to make a stand.
It is hard to see how Bush could have lost this fight, had he chosen to fight it. The best case scenario is that he would have established that a highly-credentialed candidate with a firm commitment to upholding the original meaning of the Constitution can be confirmed. Establishing this as a principle is vital to restoring the Court to its proper role.
Now suppose such a nominee were to be rejected by the Senate. The mere waging of the battle would be a victory. Granted, a lot of mud slinging would ensue; that's the nature of the beast. But in the midst of that there would be some discussion of judicial activism, judicial philosophy, and the proper role of the Court. This discussion is long overdue, and I believe the public would embrace the conservative position if the issues are aired.
Sadly the Miers' nomination hasn't spared us the mud slinging--witness the irresponsible charges of elitism and sexism being tossed about--but it has robbed us of a meaningful debate on these overarching issues, which will continue to shape the Court for generations.
I'm not saying these issues would magically be resolved in the course of a single confirmation hearing. No one is going to slay a dragon here. The process is one of repeatedly nudging the Court in the desired direction. Supreme Court nominations don't come along everyday, and if these issues don't come to the fore now, when will they?
I won't speculate as to the reasoning behind the Miers' nomination, but the end result is that the president played "Kick the Can" and missed a huge opportunity. We can only hope that it won't be several decades more before another such opportunity presents itself.