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The Long Game

Voting against Harriet Miers might come back to haunt Republican senators.

8:00 AM, Oct 24, 2005 • By JOHN HINDERAKER
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PRESIDENT BUSH'S NOMINATION of Harriet Miers to the Supreme Court has divided the conservative movement. Initially, most conservatives, but not quite all, expressed disappointment with the nomination. Since then, paths have diverged. Some conservatives, having gone on record as wishing that Bush had chosen someone else, have now migrated back into the fold, pronounced Miers a qualified candidate, and defended her nomination as the president's prerogative. Other conservatives have continued to ratchet up their attacks on Miers. Nearly every day produces yet another instance of Miers's alleged incompetence, inexperience, or suspected liberal sympathies.

Some of the criticisms of Miers are trivial; others are unfair. A few are better grounded, but at the same time, could have serious implications if Republican senators accept them as legitimate grounds to oppose her nomination.

One trivial criticism of Miers is that she was suspended briefly from both the Texas and District of Columbia bars for non-payment of dues. In at least one instance, this was apparently due to clerical error on the part of her law firm, and it is, in any case, petty. There is nothing unusual about even the most distinguished lawyers forgetting to pay their bar dues and having their licenses suspended for a few days or weeks.

An unfair criticism is the attack that has been leveled against the questionnaire that Miers filled out for the Senate Judiciary Committee. Senators Leahy and Specter pronounced the questionnaire incomplete and inadequate. In truth, however, there is little to distinguish it from the answers to the same questionnaire that were supplied by John Roberts, especially in the key area of judicial philosophy.

Several conservative pundits launched a more specific criticism of Miers's answers. They seized on this portion of Miers's description of her experience with Constitutional issues, and proclaimed it a sign of incompetence:

While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.

Critics were quick to jump to the conclusion that Miers believed that the Due Process clause requires proportional representation of races, or perhaps parties, in city council contests. A moment's reflection should have shown that this was a wholly implausible hypothesis. Another moment's reflection would have revealed that Miers used the phrase "proportional representation" to refer to the fact that, when drawing new districts to satisfy the Voting Rights Act, the City Council had to make them of approximately equal size, so that the voters of each district would be represented proportionally--a perfectly logical, if not typical, use of the phrase.

It is easy to rebut the arguments against Miers that are trivial or unfair. But there remains a kernel of truth to the attacks on her as a Supreme Court nominee. While qualified, she lacks the sterling credentials of a John Roberts, or the solid conservative history, expressed in judicial, not just political terms, of a Michael McConnell, Michael Luttig, or Janice Rogers Brown. Ironically, it is the fair criticisms of Miers that, if pressed by Republican Senators to the point where her nomination is defeated, may change the judicial confirmation procedure for the worse.

REPUBLICANS HAVE LONG TAKEN the position that, because it is the president's prerogative to select Supreme Court justices, any nominee who is qualified and doesn't subscribe to an extreme judicial philosophy should be confirmed. Some Miers critics seem now to imply a new standard by mocking Miers as undistinguished, or by pointing out how much more qualified other potential nominees would have been. Such attacks carry a hazard. Until now, the judicial confirmation process has never been seen as one where senators can reject a qualified nominee on the ground that he or she isn't the nominee the senators wanted, or the one the senators consider the best.

But many conservative critics of Harriet Miers come perilously close to urging that standard on Republican senators, in hopes that, if Miers is defeated, the president will go back to the candidate pool more favored by conservatives. But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.