October 24, 2005

Why AG Gonzales Will Not Be Nominated to Replace Harriet Miers and What We Might Get Instead

The signs are pointing to a withdrawal of Harriet Miers' nomination, probably soon. The biggest sign was the President's non-answer at a press conference today to a question about a withdrawal. I had the same reaction as Ann Althouse: "Note that [President Bush] did not express confidence that she would be confirmed or that she would make a fine Justice. He focused on her general excellence, unrelated to the position she's been nominated for, and on the Senate, stepping up the pressure to give her a fair hearing -- right after turning up the heat about the denial of the documents. It seems as though he wants the Democratic senators to make more of a stink about the documents so that he'll look more credible blaming them for forcing him to withdraw her name. I'll bet they are too smart to make that move, though. Let him twist in the wind while they hold their fire until the hearings. Or maybe even -- crazily riskily -- just go ahead and support her and leave Bush to solve his own problems, without using them for leverage."

The excuse for withdrawal appears to be a fight over executive privilege. The president won't turn over documents needed to show Ms. Miers' views on legal issues that arose in the White House. If that is indeed the basis for withdrawal, it is doubly good news for conservatives, because presumably it would take AG Gonzales out of the running too. There, the administration certainly won't want to turn over such documents (especially related to torture). Gonzales is probably the leading candidate to substitute for Miers who would be attacked by the right.

The flip side of all of this is that the new nominee could well be to the right of Miers, especially on issues like voting rights and affirmative action. Jack Balkin explores the alternative scenarios for nomination. Jack thinks the Gang of 14 might block a more conservative nominee, making it more likely that Bush will nominate a moderate. I disagree with the latter part of this analysis. The Gang of 14 could well block the nominee, but I think this helps Bush. If Bush nominates a Janice Rogers Brown, he gives the conservatives the fight they want, and regains capital with them. If he later fails after the strong Senate battle, he can come back with a more moderate nominee and a more supportive base.

If Bush is smart and wants a strong conservative who will actually be confirmed, he should nominate Judge McConnell. But it is not clear whether Bush really wants a strong conservative on the Court.

Posted by Rick Hasen at October 24, 2005 02:04 PM