Commentary: What’s next?
on Oct 27, 2005 at 10:37 am
Just 24 days after President Bush nominated Harriet E. Miers for the Supreme Court, the politics of replacing Justice Sandra Day O’Connor has changed markedly. The President appears to have less flexibility about what he does next, and the moderate Republican senators probably gain some power to determine the fate of a new nominee. The Democrats, on the other hand, may not realize much advantage, if any. Much will depend, though, on what the mood is in the White House as the selection process reopens.
As Miers’ nomination got into deeper trouble, some observers who are close to the President had said that it would come close to wrecking this presidency if he were forced to back down on Miers. That perhaps was an exaggeration, but the President, already newly vulnerable because of the hurricane disasters, the Iraq war, and the criminal investigation focused on figures high in his government, is perceived to have less political authority than he had even at the beginning of this month. He may not be in the mood, or have the “political capital,” to wage another costly battle over the Supreme Court seat.
At the same time, however, the President undoubtedly is angry about having been forced to give up on Miers. His announcement (a decision he attributed to Miers’ preference, not his) was restrained, but reflected keen disappointment. Because it was the most conservative elements of his political following that brought this about, he may be determined not to surrender by going to a nominee more clearly in favor with that sector.
Still, the best way to taunt that group — naming Attorney General Alberto Gonzalez, unpopular with many conservatives — may not be available to him. Gonzalez’s nomination would run into the same problem that the President cited in withdrawing Miers’ name: his unwillingness to give senators access to internal White House legal papers. The attorney general was White House Counsel just ahead of Miers, and he had more tenure and more influence in the job than she did, and senators surely would demand access to materials showing Gonzalez’s role in the Executive Mansion, just as they did with Miers.
If the President goes with his instincts, he will want a conservative nominee, but someone reasonably close to him but not as close as Miers has been; the charge of cronyism is part of what damaged Miers’ chances. But there are risks in that strategy now: the President as a political matter may have to reach beyond the circle of people he knows well, since his own expression of faith in a nominee’s qualifications has now been shown to be insufficient.
Ideologically, though, he does not want to reach too far beyond an already short list of dependable conservatives, because he has made it clear repeatedly he wants a nominee for the Court who has what he calls a “conservative judicial philosophy.” The more predictably conservative a new nominee is, however, the President may risk the appearance of rewarding the very activists who fought off the Miers nomination.
Moreover, the President, with his flexibility seemingly diminished, may need to make a choice that is wholly acceptable to the moderate Republicans in the Senate. If, for example, the President were to put forward Circuit Judge Priscilla Owen, a known conservative, she may not be fully acceptable to those moderates, and he would need their loyal support in the face of a likely Democratic filibuster. The Democrats appear willing to risk a new challenge to filibuster-tolerant rules of the Senate in order to thwart a nominee they would find too conservative.
The solution to this array of dilemmas perhaps would be for Bush to find another John Roberts, an individual with undoubted qualifications, an intimacy with constitutional doctrine, and a most affable personality. The lesson of Roberts’ relatively easy confirmation as Chief Justice seems more vivid now. With all of the President’s other troubles now, that may be quite an attractive prospect.
The President said on Thursday he would name a new nominee “in a timely manner.” Even if that occurs promptly, there is no chance the Senate would be able to clear the nomination in time for a new Justice to join the Court for the early November sitting, and little chance for the late November-early December sitting. Thus, it is very likely that Justice O’Connor will be on the bench through at least the end of the year. And as a result, the desire of Bush followers to have O’Connor replaced before the Justices take up the new abortion cases on Nov. 30 appears to have been frustrated by Miers’ withdrawal.
