I think that there is, in some quarters, a fundamental misunderstanding of the Right Wing response to President Bush's nomination of Harriet Miers. It is not that they know that Miers is not one of them -- it is that they do not know if she is or is not.
The other aspect of their concern comes from their belief that Bush misunderstood the significance of the Roberts confirmation process. They believed that the focus on Roberts' credentials and presentation had given them the formula for allowing Conservative judicial nominees to be able to state, loudly and proudly, their extreme judicial views. In the past, indeed, even with Roberts, the Republicans have had to loudly proclaim that their nominees were NOT really anti-choice, anti-privacy, anti-civil rights, etc. In one form or another, Republican judicial nominees have had to disavow the extreme views of their base.
The Conservatives believed those days were over. The focus on Roberts' excellent career as an attorney, his perceived intelligence and, I think this is crucial -- Roberts' unwillingness to state clearly his views (as opposed to the previous need to disavow extreme legal views) on the principal legal issues of the day, gave them hope that a "paper trail" Conservative could be confirmed. Miers' nomination dashed those hopes. Neither distinguished nor possessed of a clear paper trail, Miers is the antithesis of the type of nominee the Conservatives wanted.
This viewpoint is exhibited in the Red State editorial on Miers:
Had the President been interested in competent jurists from unique walks of life, he could have chosen Michael Luttig who knows firsthand the devastation that crime can cause from the savage murder of his father. He could have chosen Karen Williams who was first a school teacher before going on to get a law degree. He could have chosen Janice Rogers Brown, a conservative black woman who worked her way all the way to the California Supreme Court and then was appointed to the United States Court of Appeals. He could have chosen Miguel Estrada, an immigrant to this country who had an impressive career in the Justice Department with a paper trail to prove his fitness and qualifications and who suffered the loss of the wife he loves. All of these potential nominees have unique experience in their personal lives and distinguished careers in law beyond just being great lawyers.
We can be convinced that Miers is stellar. We can be convinced that Miers will be an originalist willing to reject the liberal dogma of Roe. But from where we sit now, this is a profoundly disappointing nomination, a missed opportunity, and an abdication of responsibility to make sound, well qualified nominations. Whether it is also a betrayal of first principles is still to be determined.
I think it is clear that this is a genuine reaction. On the flip I'll discuss what I think it means for Democrats.
Right now, I think Miers is a cipher. Only Bush knows where she stands on legal issues. And of course, starting from that premise, Democrats must be skeptical of her views. After all, Bush said he wanted Justices in the mold of Scalia and Thomas. With Roberts, he may or may not have gotten one. It seems clear to me that they believe so.
Thus, I don't know if Dems should oppose, support or filibuster Miers. I don't know anything about her views. I do know that the only way we'll find out is if Dems make it clear that if they don't get the information they need to carry out their Constitutional duty of advice and consent, they will consider using the filibuster.
And I think we may have some strange bedfellows on the issue. Yes, the Conservatives described above.
The reaction of the Wingnuts has been, of course, satisfying in a petty way. But it also has led them to a place that remarkably aligns with my own views - they want to know where Miers stands on the legal issues. They don't want a stonewall.
And neither should Democrats. Let's find out the answers. If Miers is an O'Connor, let's support her and get her confirmed. Let the Republicans try and mount an opposition. If Miers is a Scalia or Thomas, then we filibuster. If the White House stonewalls, let's get willing Dem and Republican Senators to filibuster.
I think it is a win-win-win. Let's discuss each scenario in turn.
If we can credibly believe that Miers will bring a judicial phiosophy akin to Justice O'Connor's, I recommend Dems support her. It is a fair and reasonable result. Bush is the President after all.
If we are not convinced that Miers is not a Scalia or Thomas, then we must oppose, even filibuster. Such a Justice would be out of the judicial mainstream and would be wholly unacceptable. Let me make this perfectly clear -- if we had a chance to vote on Scalia and Thomas today - then Democrats would filibuster. Any reasonable threat that Miers is like them demands vigorous opposition.
If Miers and the White House stonewall a la Roberts, then we simply can not be sure that we are not getting a Scalia/Thomas type. Indeed, the Conservatives want to be sure they have one, so it seems to me they won't stand for a stonewall either.
A bipartisan rejection of a Miers stonewall would not use any of our "powder" (for those who care about such things) and establish an important precedent -- a stonewall by a Presidential nominee, much like on Bolton, will simply not be countenanced by a Senate jealous of its institutional perogatives.
Oh by the way, it would also spell the merited demise of the nuclear option. A very good result as well.