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Did Bush have no choice but to pick Miers?

By W. James Antle III
web posted October 17, 2005

Harriet Miers and George W. BushAs cries of sexism, elitism and disloyalty to the president fail to persuade, conservative opposition to the Harriet Miers Supreme Court nomination continues unabated. Some Miers defenders are left with the following argument: President Bush had no choice.

Columnist Peter S. Canellos writes in the Boston Globe, "Even with control of the White House and Senate, the Republican Party doesn't have the votes to put an open opponent of abortion rights on the Supreme Court." Thomas Sowell blames "the weak sisters among the Republicans' Senate ‘majority.'" Retired National Review publisher William Rusher invokes Lincoln Chafee, Susan Collins, Olympia Snowe, George Voinovich and John McCain, all Republicans, when arguing that a battle over an established constitutionalist was untenable.

In other words, while a Michael Luttig, Emilio Garza or Michael McConnell would have provoked unified Democratic opposition and moderate Republican defections, a stealth nominee with no paper trail might slip through. Bumping up against this harsh political reality, Bush did the best he could by picking someone he knew well enough to be sure he wasn't getting another David Souter.

Many conservatives have dissected the second half of this argument – that, based on the president's assessment of her heart, we can be reasonably sure Miers is no Souter – what about the first half? Did Democrats and liberal Republicans force Bush's hand?

This may be a misreading. Senate Republicans have 55 votes, a number likely to be reduced after the 2006 midterm elections. Even if all 44 Democrats and independent Jim Jeffords choose to oppose a Supreme Court nominee by filibuster, the GOP is not without recourse. It takes just 51 votes to do away with judicial filibusters by changing Senate rules – the so-called nuclear option – forcing through the president's nominee by majority vote and giving him a freer hand in his lower-court appointments.

Even if the five Republicans named by Rusher opposed the nuclear option, the rules change would still prevail with the support of 50 senators plus Vice President Dick Cheney's tie-breaking vote. And it is by no means certain that all five would buck their party on this issue.

John McCain is considering another run for president. He needs to repair his relationship with his party's conservative base. Supporting a strong constitutionalist for the Supreme Court would go a long way toward reassuring disenchanted social conservatives.

Ohio's George Voinovich is an obstacle on tax cuts and opposed Bush on the John Bolton nomination. But this does not mean he would block a conservative appointment to the Supreme Court. A strong pro-lifer, he would have no objection to a judge who might overturn Roe v. Wade. And he did not join in the bipartisan accord that preserved Senate judicial filibusters.

That "Gang of 14" agreement allows filibusters of judges only in "extraordinary circumstances." It is not clear that the appointment of any strong constitutionalist – even some thought to be anti-Roe – would qualify as such circumstances. If Democrats proceeded with such a filibuster, only two Republican signatories would need to regard this as a deal-breaker and vote to go nuclear.

Not all of these Republicans are pro-choice moderates. In addition to McCain, Sens. Lindsey Graham of South Carolina and Mike DeWine of Ohio are pro-life. DeWine faces reelection next fall and needs motivate a demoralized base. Graham is perhaps the most conservative member of the Gang of 14.

Priscilla Owen and Janice Rogers Brown were confirmed for appellate judgeships as part of the agreement. If elevated to the Supreme Court, Democrats could argue that they were suddenly "extraordinary" and therefore deserving of filibusters. But that would be a difficult case to make.

It isn't even clear that the politics of a Supreme Court filibuster would work in the Democrats' favor. In 2002 and 2004, Republicans won most of the Senate races in which Democratic filibusters of appellate-court nominees were an issue. Conservatives saw nominees they supported being bottled up; independents saw Democratic obstructionism. These were judgeships relatively few voters had even heard of; the consequences of denying an up-or-down vote to a high-profile Supreme Court nominee would likely be greater.

Bush's approval ratings may have dipped below 40 percent, but the issue of conservative judges could unite the country behind him. If Democrats raised the specter of Roe's reversal, the White House could point to judges who would strip "under God" from the Pledge of Allegiance and void referendum votes against gay marriage.

Even in Bush's weakened state, some Democrats might be reluctant to join the fight. Three Senate Democrats believe Roe was wrongly decided. Two – Sens. Ben Nelson of Nebraska and Mark Pryor of Arkansas – have strong political incentives to vote with the president. (The third, Senate Minority Leader Harry Reid, would obviously vote with his party.) Other red-state Democrats, like South Dakota's Sen. Tim Johnson and perhaps even Sen. Bill Nelson of Florida, will think twice before opposing a qualified conservative jurist.

But if Roe is the problem, Harriet Miers isn't necessarily the solution. J. Harvie Wilkinson, like Chief Justice John Roberts, is a question mark on the abortion decision. He also has stronger credentials as an originalist. Could he not be confirmed?

None of this is to say that a battle for an established constitutionalist was guaranteed to be successful. But with the hard left opposing Miers and half the Senate's Republicans reportedly expressing doubt, there are no guarantees in Bush's present course. It wouldn't have been an easy fight, but it would have been one well worth having.

That Bush chose to shirk it is nobody's fault but his own.

W. James Antle III is an assistant editor of The American Conservative and a senior editor for Enter Stage Right. The views expressed above represent his alone.

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