MONDAY morning saw President Bush's much-anticipated announcement of his pick to replace retiring Justice Sandra Day O'Connor, but when Harriet Miers' name was called, many Americans, both conservative and liberal, scratched their heads in confusion. Why Harriet Miers? Why not press the advantage and nominate a more controversial candidate (or at least a candidate that we've all heard of)? Although Bush's nomination of Miers was strategically sound in that she has a good chance of winning support from Republicans and Democrats alike, it was unsound because even Bush cannot foresee where Miers will stand on key issues because she has never had to take a stand and decide how she interprets the Constitution.
Miers, if confirmed, will come to her post with no prior judicial experience, although she was the first woman to serve as president of the Texas Bar Association and has had a strong and ambitious law career. She was appointed Bush's White House counsel in 2004 (replacing another potential judicial nominee, Alberto Gonzales) and has helped to guide the president in his search for judicial nominees throughout the process, and, presumably, has a good sense of how to portray herself best as a candidate. Indeed, Miers presents remarkably few obstacles on the path to confirmation. Her lack of experience as a judge certainly counts against her, but that same characteristic also means that she has no paper trail with which Democrats might find fault. Miers is conservative enough and loyal enough to the Bush administration to please the Republicans and the female presence she would offer on the Court should make Democrats happy as well.
Despite all the good reasons to choose Miers as a nominee, Bush made the wrong move for his party because he did not choose a candidate who has already taken a definitive stance on issues critical to American politics today. White House Communications Director Dan Bartlett said on CBS's "The Early Show" that Miers believes that "justices shouldn't be creating law from the bench, they should be strictly interpreting the Constitution," but since Miers has no past record on the bench, we have no way of knowing how firm she will stand in this belief. She is rumored to have been weak in her stance on abortion and gay rights in the past -- a rumor that is already upsetting some of the conservatives Bush depends upon for her confirmation. Indeed, Miers' success as a nominee will likely be hindered more by the Republicans who desire a more conservative candidate than by the Democrats happy to settle for a potential swing vote. Of all of the nominees Bush had to choose from, he selected a woman who could potentially compromise the ideology of conservatism and be the crucial swing vote of a court that should stand firm.
With 55 Republican votes in the Senate, Bush could well have afforded to choose a candidate less likely to satisfy liberals. President Bush compromised the stability of the Supreme Court on issues such as gay marriage, abortion, genetic research and privacy rights as well as the priorities of his party in order to please those calling for a minority or a woman to fill O'Connor's seat; while Miers is a more than capable lawyer, she is not the firm, confident candidate that conservatives hoped to be able to support. Bush's decision not to press his advantage of numbers in the Senate and nominate a candidate of the Clarence Thomas or Antonin Scalia type, who might strengthen the conservative force on the Supreme Court and ensure that the court would remain that way, has undermined the confidence the Republican party had in him and may continue to threaten his agenda.
Bush may well find in the days to come that liberal support for Miers will be greater than expected merely because she isn't a Thomas or a Scalia figure who would tip the court scales in the conservatives' favor. Yet Bush will also see conservatives rebuking him for compromising the strength of the Supreme Court to put a woman on the bench. While Bush's selection of Miers was intended to please both parties, the compromise he chose will lose him the respect of many in his own party while failing to garner full endorsement by liberals as well. Perhaps Bush would have done better to choose the candidate with the strongest background despite Democrat objections. After all, what's the point of a 55-vote majority in the Senate if you're not going to use it?
Elizabeth Mills is a Cavalier Daily Viewpoint writer.
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