Sharpen Up The Forks
By Jack Balkin recently discussed Epstein and Segal’s new study of judicial nominations, which suggested that the Miers nomination would be an uphill climb at best. My assumption has always been that the historical data would be of only limited relevance, because of the increasing parliamentarization of Congress (which I’ll discuss further in what will I’m sure be a flurry of posts about the new Hacker and Pierson book.) I figured that Bush would be particularly stubborn about the nomination of his friend, and that he would be able to ram it through. But I think right now that it’s very unlikely. The increasing circulation of minor ethical lapses suggests a number of rationales that could be used to withdraw the nomination; it reminds me of the alleged conflicts of interest that were used to sink Clement Haynsworth (the first of the two Nixon appointees rejected before Nixon appointed Blackmun.) My sense is that a lot of Senate conservatives are making the same calculations I have–forcing Miers’ withdrawal is likely to lead to someone younger, better and more conservative. While, conversely, the defenses of Miers have been so inept and her qualifications so poor that it would be (rightly) difficult for Senate Dems to actually support her, as opposed to passively letting Republicans vote to confirm. Bush is no longer just lame; he’ certainly giving off a pretty ducky odor these days, and it’s not clear if he would have the leverage to get recalcitrant Senators in line. And the remarkably small number of committed Senators is an ominous sign. I think, contrary to my initial assumption, that the nomination is doomed.
I remain convinced that this is likely to be a bad thing for progressives, on balance. I hope I’m wrong about the type of judge that Bush would appoint as a replacement, but it would seem to me that the obvious move for him would be to appease his base. It could get really ugly.
