8 October 2005

The apparent public humiliation of Harriet Miers by Republicans must be a joke. Since her name was put forward, President Bush’s nominee to replace Justice Sandra Day O’Connor on the Supreme Court has endured a variety of out-in-the-open lashings, mostly by so-called “conservatives” who say they do not find her Republican Party, born-again Christian credentials to be authentic enough for their taste. Doubts have been raised about her anti-abortion credentials by the likes of Senator Sam Brownback, and other questions posited by GOPers who seem bothered by Miers’ somewhat blank canvas of a past – a generally clean slate at least where major legal issues are concerned. The Republicans are aided in this storm by the media, particularly the “liberal” media, only too happy to cover what looks like a juicy internecine brawl.[1]

There has been chatter about Supreme Court vacancies since Bush’s election in 2000, all of it with a heavy emphasis on the President’s determination to select a “strict” interpreter of the Constitution, or some other formulation indicating the GOP’s desire to have a “conservative” judicial activist rather than a “liberal” one. Having waited anxiously for five years, and arriving at the lucky position of a two-for-two swap, it seems unlikely that Bush’s second nominee (following the confirmation of John Roberts) is of a mold other than that of precisely the President’s desire. All of the objections and alleged consternation by various Republicans seems just a bit too contrived, almost too convenient.

There are two strong pieces of evidence to support the conclusion that the public objections to Miers’ by Republicans are not real. The first concerns the broader political environment faced by Republicans: Congress must address a number of challenging financial issues, not the least of which is finding ways to pay for Republican and Democratic hurricane-related failures in New Orleans and around the Gulf Coast. President Bush’s Iraq war remains a downer of a subject for all concerned, but (like it or not) it affects Republicans more strongly. Mid-term elections are not that far away, and yet many of the issues Americans indicate that they want addressed – such as health care and Social Security – remain boxed up, while Senators and Congressmen feed their districts large and unhealthy servings of pork from recent energy and transportation bills. And to top it all off, the President himself is on the ropes right now, with his approval ratings dispiritingly low, making him a less effective asset in a variety of re-election campaigns, at the same time that Congressman Tom “the Hammer” Delay was forced to step down from his central leadership position by a series of indictments.

Thus, a GOP-lead “soft” attack on Harriet Miers as Supreme Court nominee is a marvelous distraction, serving up front-page articles across the nation and displacing real news, the bad news the Republicans hope to sweep under the rug. Notice that the attacks are generally insubstantial, addressing very little about Miers complete inadequacy for the Supreme Court. Instead, they are comments made carefully based on circumstantial evidence (e.g., attacking her anti-abortion credentials by suggesting she did not attend enough anti-abortion rallies) or which imply that because she has no track record as a jurist or scholar, her views cannot be fully tested out. Even questions raised by some conservatives about her devotion to her faith are ingenious because of the automatic Republican response that (as with Roberts) this is an inappropriate line of questioning.

Which leads to the second piece of evidence about this GOP theater masquerading as a vetting process: it has boxed out the Democrats. The Dems have been rather quiet since Miers’ name was tossed into the ring, perhaps because they assume that they have little to gain by attacking the nominee when she is already under siege by her own compatriots. Yet surely they do not expect that President Bush – a man who, in a public debate, was famously unable to acknowledge ever having made a mistake – will back down from his support for Miers? And surely they do not support Miers, just because conservatives have raised questions about her authenticity? Political and religious converts such as Miers tend to be even more devout, which suggests she will hardly be a centrist advocate on the Court in the manner of David Souter.

This is political rope-a-dope, a tactic that the GOP has well mastered. Look at the Sesame Street attack staged this summer: brilliant politics that diverted the left and allowed maneuverability for the GOP. Harriet Miers’ loyalty to President Bush has been rewarded by being put forward for this Supreme Court position and, surely, she has been well prepared for the political strategy that underlies her nomination at this challenging moment. Where legitimate questions about her qualifications have been raised, they have been rapidly brushed aside – amidst a series of other attacks that make any kind of intellectual concerns appear narrow and pointy-headed when compared to such popular, big-picture issues as her stand on abortion or her religiosity. There is little question of her being confirmed; it seems like destiny; the Republican-lead Senate would no more reject Miers than impeach President Bush. But her confirmation will take place with some visible (mock-)arm-twisting by the President with the likes of Senator Brownback and other doubters, whose acquiescence at the 11th hour will, again, leave the Democrats in the dust.