The Magazine

What Is To Be Done?

. . . about the Harriet Miers nomination.

Oct 17, 2005, Vol. 11, No. 05 • By WILLIAM KRISTOL
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IT'S BEEN A BAD WEEK for the Bush administration--but, in a way, a not-so-bad week for American conservatism. George W. Bush's nomination of White House Counsel Harriet Miers to the Supreme Court was at best an error, at worst a disaster. There is no need now to elaborate on Bush's error. He has put up an unknown and undistinguished figure for an opening that conservatives worked for a generation to see filled with a jurist of high distinction. There is a gaping disproportion between the stakes associated with this vacancy and the stature of the person nominated to fill it.

But the reaction of conservatives to this deeply disheartening move by a president they otherwise support and admire has been impressive. There has been an extraordinarily energetic and vigorous debate among conservatives as to what stance to take towards the Miers nomination, a debate that does the conservative movement proud. The stern critics of the nomination have, in my admittedly biased judgment, pretty much routed the half-hearted defenders. In the vigor of their arguments, and in their willingness to speak uncomfortable truths, conservatives have shown that they remain a morally serious and intellectually credible force in American politics.

One should add that some of the defenses of the president have been spirited as well--and in fairness to the defenders of the Miers nomination, they really were not given all that much to work with by the White House. Consider this game effort from one former Bush staffer:

Harriet used to keep a humidor full of M&M's in her West Wing office. It wasn't a huge secret. She'd stash some boxes of the coveted red, white, and blue M&M's in specially made boxes bearing George W. Bush's reprinted signature. Her door was always open and the M&M's were always available. I dared ask one time why they were there. Her answer: "I like M&M's, and I like sharing."

Do these things matter at all when it comes to her qualifications for being an Associate Justice on the United States Supreme Court? Yes. They speak to her character. And in matters of justice, matters of character count.

So what now? Bush has made this unfortunate nomination. What is to be done? The best alternative would be for Miers to withdraw. Is such an idea out of the question? It should not be. She has not aspired all of her life or even until very recently to serve on the Supreme Court. And her nomination has hurt the president whom she came to Washington to serve. Would a withdrawal be an embarrassment to the president? Sure. But the embarrassment would fade. Linda Chavez at the beginning of the first term, and Bernard Kerik at the beginning of the second, withdrew their nominations for cabinet positions and there was no lasting effect. In this case, Miers could continue to serve the president as White House counsel. The president's aides would explain that he miscalculated out of loyalty and admiration for her personal qualities. And he could quickly nominate a serious, conservative, and well-qualified candidate for the court vacancy.

Failing that, we are headed towards hearings that will in no way resemble the recent triumph of John Roberts. These hearings will not be easy for Miers, as she will have to at once demonstrate a real knowledge of constitutional jurisprudence, reassure conservative constitutionalists, and presumably placate Democrats as well. Conservative senators will for the most part withhold judgment until the hearings are completed. Many have already said as much, leaving open the possibility of a no vote in the event things do not go well. It would be awkward, of course, if a combination of conservative and Democratic votes defeated Miers. But this is a moment where it is more important that conservatives stand for core principles than that they stand with the president.

It may be--we can certainly hope--that Miers will be very impressive and that conservatives can support her in good conscience. But if not, they will be doing a favor to the conservative cause, the Republican party, and--believe it or not--the final three years of the Bush administration by voting no on Miers's confirmation. Conservative congressional opposition to the 1990 budget deal was a key to Republican success in 1994--and the absence of such opposition would not have helped the first President Bush in 1992 anyway. Conservative opposition to Nixon's policy of détente was crucial to laying the groundwork for Ronald Reagan's success in 1980--and didn't appreciably hamper Gerald Ford's already uphill struggle in 1976 in any case. This is a time when loyalty to principle has to trump loyalty to the president.

President Bush's nomination of Harriet Miers was an out-of-the-blue act of loyalty to a longtime staffer. Is it too much to hope that she might reciprocate by withdrawing, thereby sparing her boss the chance of lasting damage to his legacy that her appointment to the Supreme Court may well represent?

-William Kristol