October 03, 2005

Understanding the Puzzling Miers Choice

President Bush's decision to nominate White House Counsel Harriet Miers to the Supreme Court to replace Justice O'Connor is puzzling, in at least a few ways. First, the timing is odd. The President announced the nomination just before ceremonies for the new Chief Justice, thereby unnecessarily upstaging those ceremonies. Second, the announcement was apparently made without lining up conservative support for the nomination in advance. Read National Review's Bench Memos to see the lack of enthusaisam for the nominee so far, and see the cautious reactions of Democrats to the nomination. Tom Goldstein has already predicted that Ms. Miers' nomination will be defeated, and one cynical observer suggests that the nomination is "a Rovian strategy to pick someone who has little apparent qualifications so the Dems can spend all their capital attacking her. Eventually, Bush will give up and she won't be confirmed. Then, he announces his TRUE pick, and the public runs out of patience for the dems trying to defeat two in a row."

I had initially predicted that the President would nominate Roberts II. "The model is to pick someone with impeccable legal credentials (Brown and Gonzales both qualify) whom the president trusts as strongly conservative (this eliminates Gonzales) but who lacks a public record of strongly conservative statements or judicial opinions (this eliminates Brown). The Roberts experience shows that such a nominee is not easily defeated: the impeccable credentials insure that attacks on the nominee as unqualified fail, and the lack of strong specific examples of conservative ideology prevent opponents of the nominee from having enough ammunition to get the general public concerned about the ideological extremism of the nominee."

I then backed off this prediction, noting that President Bush seemed to be getting pressure from the right to nominate someone with more conservative credentials, a Scalia or Thomas II.

It appears that Bush has decided to follow the first model. The pitfalls occur if (1) Miers is not seen as sufficiently weighty (especially in comparison to Roberts himself) so that the nominee can use qualifications to make up for any doubts about ideology; (2) Conservatives fail to line up behind the choice. From the Democratic perspective, it is hard to see how a crap shoot that comes with the Miers nomination is worse than the nomination of a Judge Brown or Owen. It could even be that Ms. Miers will not be anti-abortion, and Jack Balkin's suggestion that President Bush wants to preserve Roe may be on target.

Posted by Rick Hasen at October 3, 2005 08:47 AM