The Miers Nomination, 2005-2005

I didn’t predict this at the time, but it seems, as history often does, inevitable in retrospect. Balkin was right–a stealth nominee with no credentials is a deadly combination, because they have no inherent base of support. As for what comes next, Lyle Denniston‘s commentary is, I think, pretty much right on the mark. As Matt says, the previous two times this happened the President reacted with a petulant, doomed nomination, and Bush is (to put it mildly) not likely to react more maturely. (It was Nixon’s nomination of Harold Carswell, of course, that led to Roman Hruska’s oft-quoted anti-meritocratic–and anti-Semitic–tirade: “Even if he [Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers,” Hruska declared. “They are entitled to a little representation, aren’t they, and a little chance? We can’t have all Brandeises and Cardozos and Frankfurters and stuff like that there.”) The difference, of course, is that Nixon knew exactly who he wanted to stick it to (“if those damned liberals don’t want my first segregationist judge with minor ethical problems, I’ll give them and even more segregationist judge with even more serious ethical problems who’s also not very bright!”), whereas many of the knives in Miers’ back come from Bush’s own side. So the question is whether Bush will stick it to liberal elites by nominating an Owen on the Court, or whether he’ll stick it to the snobs in his own party by going with someone like Gonzales. Either way, keep plenty of popcorn handy.

As regular readers know, I don’t see this an an unequivocally positive development, although she was so inept I must admit a sense of relief at her withdrawal; making lesser-of-two-really-evils arguments gets pretty wearying. I’ll even concede that I’m willing to live with someone perhaps a little more clearly conservative to get a competent justice on the Court. The question is whether the next nominee will be over what might be called “the McConnell line,” the point at which the votes get so bad it would be better to have a fifth-rater with more a ambiguous ideology. Bush administration stenographer Hugh Hewitt seems to be creating criteria (starting with someone who was recently confirmed) that would compel Bush to nominate one of a few nominees–McConnell, Owen, Brown, Pryor. All except maybe the first would, I think, be clearly worse than Miers, but it’s moot now. And the fact of Miers’ early withdrawal does, I think significantly strengthen the argument of the liberal anti-Miers argument (and this is where I was wrong): it’s clear now that Bush is far weaker than he was 2 years ago, which means that the Dems may well be able to block a neo-Confederate nominee. I certainly hope so.