IT HAS NOW BEEN ALMOST TWO WEEKS since George W. Bush touched off a conservative civil war by nominating his White House counsel, Harriet Miers, to the Supreme Court. Miers, who has worked with Bush for over a decade, received the appointment based, we're assured, on the confidence the president has in his attorney.
Part of the reaction to Miers's nomination comes from bewilderment as to why Bush selected Miers ahead of a talented field of well-known and well-respected conservative jurists, legal scholars, and practitioners. While backers of the Miers nomination point to her work as managing partner of a prominent law firms in Texas and her pioneering position as the first woman to head the Texas Bar Association. And that's about all we're getting from the White House
Well, that's not exactly true. When the depth of conservative disappointment and frustration became apparent, the White House dispatched Ed Gillespie to calm the waters and explain the thinking behind the surprise decision. During meetings with Paul Weyrich, Grover Norquist, and other conservatives, Gillespie and other emissaries tried to lay out the case for Miers as the best choice for the Court opening. When it became apparent that the argument failed to convince the gathering, Gillespie accused the critics of sexism and elitism--eliciting howls of disapproval that caused Gillespie to back down, claiming he intended that criticism for the broader debate on Miers.
Then, on Tuesday morning, the Bushes appeared on the Today Show, prompting this exchange with Matt Lauer:
Matt Lauer: Some are suggesting there's a little possible sexism in the [conservative] criticism of Judge Miers. How do you feel about that?
MRS. BUSH: That's possible. I think that's possible.
Sexism? That seems like an odd charge to toss at conservatives, especially since the entire exercise of this nomination appeared to revolve around the gender of the nominee. The first lady had campaigned for a woman to replace O'Connor, creating the impression that the same Bush administration that had only mildly challenged a University of Michigan affirmative-action program had suddenly adopted a preference system for the Supreme Court.
In any case, the conservative critics had several ready answers to the charge. Most of them wondered why, if the Bush administration seemed set on selecting a woman, Janice Rogers Brown wouldn't have been considered. Brown, whose fearless writing has made her a favorite across the conservative spectrum, could have provided a solid and established conservative voice on the Court and would have made matters just as difficult for Democrats on the Judiciary Committee as John Roberts did. Her scholarship and erudition would have easily overmatched Senators Schumer, Kennedy, and Biden.
If the White House considered Brown too controversial, then what about Edith Hollan Jones? Priscilla Owen also came to mind. If the idea was to pick a working attorney rather than a sitting jurist, Maureen Mahoney would appear to have all the qualifications that Miers lacks--she has argued over a dozen cases at the Supreme Court, clerked for William Rehnquist, had a long career in constitutional law, recognition from the National Law Journal as one of America's top 50 female litigators, and was chair of the Supreme Court Fellows Commission.
After having developed a slate of female candidates with such impressive credentials, accusations of sexism called into question just how much thought went into the Miers nomination in the first place.
DURING HIS PRESIDENTIAL CAMPAIGNS, Bush promised to nominate conservatives to the Supreme Court in the mold of Antonin Scalia and Clarence Thomas. Now the bill has come due, and the response the president's supporters have received has been: "trust me." Some have noted similarities between this nomination and the last "trust me" Republican nomination to the Supreme Court, David Souter. Bush the Elder told conservatives that Souter would be a "home run."
In the past few months, Bush has had two opportunities to fulfill his own election pledge. The president instead selected a brilliant, but largely untested, Rehnquist acolyte and his personal attorney. Conservatives want to know how Miers fulfills his election pledge. Instead of getting any clear evidence of a conservative scholar or action in support of conservative judicial initiatives, the Bush administration has kept its lips silent after demanding trust.
The worry for them is that in 2006 the Republican base may keep quiet, too.
Edward Morrissey is a contributing writer to The Daily Standard and a contributor to the blog Captain's Quarters.