‘A Missed Opportunity,’ a Critic Says
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
WASHINGTON – As President Bush praised his most recent nominee to the Supreme Court, Harriet Miers, as an “outstanding” legal mind, the conservatives who twice put him in office wasted no time in communicating their outrage yesterday, denouncing the president’s choice as an “error” made out of “weakness,” as “disappointing,” and as “a missed opportunity.”
“The sense is that the president has made a significant misstep,” a former counsel for Senate Majority Leader Frist, Manuel Miranda, told The New York Sun. “I think that many conservatives are disappointed not because of who Harriet Miers is,” he added, “but because of who she is not.”
To many of the president’s conservative supporters, the replacement of Justice O’Connor had represented a key opportunity to correct a perceived leftward slant on the high court, and to halt the spread of “judicial activism” irksome to strict constructionists. From across the right half of the spectrum yesterday came reminders of the president’s promise to nominate men and women in the mold of Justices Thomas and Scalia, whose legal conservatism is considered by most of the Republican base to be unambiguous and unassailable.
Since the 2000 campaign, the prospect of imminent vacancies on the Supreme Court had been a key political issue for President Bush, and yesterday many conservative commentators and leaders of the movement also issued reminders of how they had patiently tolerated numerous disappointments with his administration because they trusted that the president would, at the very least, not botch the issue of tantamount importance: Supreme Court nominations.
Writing on National Review Online yesterday, a scholar at the American Enterprise Institute, David Frum, described the mindset as: “You can always count on George W. Bush to get the big ones right,” identifying political necessity as the cause of President Bush’s past gaffes. The Miers nomination, however, was an “unforced error,” Mr. Frum wrote, in that President Bush unnecessarily caved to a vocal and bitter minority party intent on preserving the status quo on the court.
Mr. Frum was joined yesterday by a constellation of conservative luminaries, from Rush Limbaugh to Michelle Malkin to Pat Buchanan. The editor of the Weekly Standard, William Kristol, came out early against the Miers nomination, writing on the magazine’s Web site that he was “disappointed,” “depressed,” and “demoralized” by the president’s pick. The nomination, he concluded, showed that President Bush had “flinched from a fight on constitutional philosophy,” that Ms. Miers’s “selection will unavoidably be judged as reflecting a combination of cronyism and capitulation on the part of the president.”
“Surely,” Mr. Kristol added, “this is a pick from weakness,” despairing of the Republicans’ prospects for the 2006 midterm elections and the 2008 effort to retain the White House.
A veteran national pollster based in upstate New York, John Zogby, confirmed that going into the 2006 midterm elections, “Republicans are wounded for a number of reasons.” According to a poll to be released today, the president’s approval rating is at 43%, and the indictment of the House majority leader, Tom Delay, of Texas, and the probe into the Senate majority leader, William Frist, of Tennessee, “certainly doesn’t help,” Mr. Zogby said.
Mr. Zogby pointed to a re-emergence of a political center frustrated with the results of base politics, and of the Republicans’ need to respond to it. The Miers nomination, Mr. Zogby said, therefore represented President Bush’s “Sister Souljah moment,” referring to President Clinton’s 1992 campaign when he sought to establish his independence from traditional left-wing interest groups by denouncing provocative statements from an inflammatory hip-hop artist.
In nominating Ms. Miers yesterday, to the chagrin of many on the right, Mr. Zogby said, President Bush was signaling that he is not beholden to the core elements of the conservative movement. It was also a way of defusing the left, Mr. Zogby said, insofar as it deprived them of a cause they could campaign on in 2006, and use to raise tens of millions of dollars for that election and the subsequent one in 2008.
In one possible electoral drawback, however, Ms. Miers’s nomination would likely be seen as “a diss” by Hispanics, Mr. Zogby said. “I don’t think there’s any other way of looking at it,” Mr. Zogby said, especially among the significant percentage of Hispanics who voted in 2004 for President Bush, who has said he would like to nominate the first Hispanic Supreme Court justice.
Mr. Miranda, too, said President Bush’s failure to nominate a Hispanic sent an unfortunate message. “It was an opportunity to have sent a message to a 15-year-old boy or a 15-year-old girl in East L.A. or El Paso that a Hispanic could rise to the Supreme Court of the United States, and he blew it,” Mr. Miranda said.
In the meantime, response from the Republican base credited with winning President Bush re-election and expanding the Senate’s majority in 2004 – in no small part on the issue of judicial nominees – boded ill for the GOP’s future electoral success.
Over the airwaves and on the World Wide Web, the conservative commentariat was abuzz. National Review Online wrote in an editorial that the Miers pick was “a missed opportunity,” scolding the president for his nomination criteria. “Being a Bush loyalist and friend is not a qualification for the Supreme Court,” the editors wrote. At the conservative blog RedState.org, editors opined: “From where we sit now, this is a profoundly disappointing nomination, a missed opportunity, and an abdication of responsibility to make sound, well-qualified nominations.” One blogger at the Volokh Conspiracy described online reactions from the Republican base as “apoplectic.”
Echoing concerns expressed by many conservatives, Mr. Miranda said yesterday that Ms. Miers’s lack of a clear record was troubling. Other conservatives said the notion that, in order to be confirmed to the Supreme Court, a nominee must have spent a lifetime dodging contentious social issues was objectionable. Mr. Miranda faulted President Bush for having created a “glass ceiling” for women by promoting judges like Priscilla Owens and Janice Rogers Brown, and then holding them back once they accumulated conservative judicial records that could provide fodder for attack from Senate Democrats.
Another gauge of conservative discontent, Mr. Miranda said, was the degree to which the array of conservative interest groups that had enthusiastically supported the nomination of Chief Justice Roberts had issued flaccid statements about Ms. Miers, stating only that she deserved an up-or-down vote instead of praising her qualifications as a potential jurist. One influential conservative organization that had enthusiastically supported Chief Justice Roberts, the Family Research Council, said yesterday that it was approaching Ms. Miers with a “wait-and-see” mentality.
Mr. Miranda also heaped criticism yesterday on the “yes men”: the conservative legal organizations advising the president on nominations, such as the Federalist Society. Most of those interest groups – from the Federalist Society to the Judicial Confirmation Network to the Committee for Justice to the Center for Individual Freedom – echoed GOP talking points about the nomination yesterday, issuing synchronized praise for Ms. Miers’s love of the rule of law, her intellect, and the fact that she had broken barriers for women during her legal career in Texas.
“Those groups are completely controlled by the GOP apparatus,” Mr. Miranda said.
The chief counsel for the Judicial Confirmation Network, Wendy Long, however, defended the president’s pick yesterday. Ms. Miers, Mrs. Long said, had had a significant influence in selecting the president’s judicial nominees to date, including Chief Justice Roberts, and Republicans concerned about Ms. Miers’s lack of a record should use those selections to discern the nominee’s conservative credentials. Moreover, Mrs. Long said, conservatives should trust the president they elected to supply them with competent judicial nominees.
Vice President Cheney, too, was dispatched to defend Ms. Miers, also arguing that the Republican base should support her out of trust for President Bush. On Rush Limbaugh’s radio program yesterday, the vice president said: “You’ll be proud of Harriet’s record, Rush. Trust me.”
Mr. Limbaugh, for his part, seemed loath to oblige. Opining that the selection of Ms. Miers was “made from weakness,” Mr. Limbaugh wrote: “There was an opportunity here to show strength and confidence, and I don’t think this is it.”