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What Might Have Been

The Miers nomination didn't have to go this way.

4:20 PM, Oct 12, 2005 • By FRED BARNES
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WHAT DOES A PRESIDENT owe his followers, especially on issues that may have caused them to back him in the first place? And what do followers owe their president, particularly on matters where his commitment to their common agenda is unclear? These questions need to be considered in light of the conservative revolt against President Bush's nomination of Harriet Miers to the Supreme Court.

Let's start with Bush. What's his obligation to his supporters, the majority of them conservatives? I think it's quite simple: on major issues, he must do what he promised to do. He's obligated to cut taxes and not turn around and raise them later. He's required to pursue the war on Islamic jihadism without cease, as he vowed after 9/11. And on the courts, he must appoint judicial conservatives who may not be exact replicas of Antonin Scalia and Clarence Thomas but are at least roughly in their mold. These are core promises.

Should the president renege on them, his faithful followers have every right to protest. In the case of the elder President Bush, they did just that when he abandoned his promise not to raise taxes. The tax pledge had been a core promise. And the senior Bush paid a high political price, losing reelection. But he brought it on himself. His supporters had every right to jump ship.

Many Republicans who support the current President Bush are mad at him for signing a Medicare prescription drug benefit into law. And they're upset that he's expanded the role of the Education Department. But he'd promised to do both. So he was fulfilling promises, not breaking them. As for signing the campaign finance reform bill, that may have been a mistake, but he hadn't promised to veto it.

The issue now is filling the vacancy on the Supreme Court with someone who would shift the ideological balance to the right. This is a critical concern because a conservative replacement could achieve exactly that. And the president has insisted that in naming Miers, his White House counsel, he's picked a judicial conservative, though one without a track record on constitutional issues.

How should Bush's followers have responded? I don't think they have an obligation to give the president the benefit of the doubt. But, given his impressive record of naming judicial conservatives to the appeals courts and John Roberts to be chief justice of the Supreme Court, they owe Bush and Miers a reasonable chance to make a case for her as a judicial conservative, or a constitutionalist. The opportunity for that will come when she testifies before Senate Judiciary Committee in a few weeks. However, many Bush supporters and allies, particularly a large number of prominent conservatives, have not waited for her testimony.

They're free, I believe, to complain that it would have better for Bush to have chosen a nominee--Judge Michael Luttig of the 4th U.S. Court of Appeals, for instance--whose past performance strongly indicates that person would be a reliable judicial conservative on the Supreme Court. (In truth, Luttig would have been my choice.) And Bush's followers are free to object to the White House's lame effort to stir up support by revealing that Miers is pro-life and an evangelical Christian.

But some have gone well beyond this and attacked Bush's motives in naming Miers. The most frequently made accusation is that Bush acted from weakness and sought to avert a serious fight in the Senate. I haven't seen any evidence to substantiate this. In my view, it doesn't make sense. Only weeks ago, Bush's first high court pick, John Roberts, blew away Democratic opposition. So why would Bush suddenly be afraid of the likes of Chuck Schumer and Dick Durbin now? As I say, it doesn't make sense.

Another charge--call it an insinuation--is that the president was just being a Bush in nominating Miers. You know, someone who pretends to be a conservative but really isn't and is squishy like his dad. Bush's conservative record on social, economic, and foreign policy issues undermines, even refutes, this charge.

Then there's the charge that Bush fell for the kind words that Senate Democratic leader Harry Reid said about Miers before her selection and figured she'd win easy confirmation with Reid's endorsement. Still another is that he feared moderate Republicans in the Senate's gang of 14 would abandon a strong conservative and allow Democrats to filibuster that nominee successfully. Finally, there's the notion Bush wasn't well-versed enough to understand the significance of this nomination. I haven't seen any evidence for these charges either.