I have to admit that I have been conflicted regarding the HM’s nomination to the SC. Although I agree with much of what Melanie Kirkpatrick says in yesterday’s Wall St. Journal including the following:
Mr. Bush was elected in part on his pledge to remake the federal judiciary, and he’s demonstrably followed through on that promise. That includes the appointment of John Roberts as chief justice of the United States, 43 appointees to the appeals courts and nearly 200 judges on the federal district courts. There are 871 judges in the federal judiciary, including 50 current vacancies. By the end of his second term, Mr. Bush will have appointed one-third or more. Ms. Miers has served on the committee that advises the president on judicial picks and, as White House counsel, has been chairman of that committee for the past year.
This reshaping of the judiciary hasn’t been easy, and Mr. Bush has had to fight to keep his word. During his first two years in office, a Democratic-controlled Senate refused to act on 47% of his appeals-court nominees, or 15 out of 32 names. He renominated them on Jan. 7, 2003, immediately after the new, GOP-controlled, Senate was seated.The Democrats’ next tactic was the filibuster. No Senate had ever filibustered a president’s appeals-court choice before, but 10 of Mr. Bush’s best-qualified nominees met that fate in the last Congress. They included three women, an African-American, an Hispanic and an Arab-American. All had enough bipartisan support to be confirmed but were denied a vote by a liberal minority of Senators.
Mr. Bush didn’t back down on his nominees. He gave recess appointments to two–Charles Pickering of the Fifth Circuit and William Pryor of the 11th–who had been subjected to particularly vicious smears by Democrats. Judge Pickering had been accused of harboring racist views, even though he had the support of many African-Americans in his home state of Mississippi. Judge Pryor, Alabama’s attorney general, was skewered for his traditional Catholic beliefs even though he had pledged to uphold Roe v. Wade. Mr. Bush’s recess appointments came against the advice of some who favored compromise with the Democrats.
His highest-profile pick was Miguel Estrada, a Honduran immigrant who is often classed with Mr. Roberts as one of the brightest lawyers of his generation. After 28 months of waiting for a vote–and seven attempts in the Senate to break his filibuster–Mr. Estrada decided to withdraw and get on with his life. The White House had been prepared to keep on fighting.
Mr. Bush understood the political stakes here, and put Democrats’ obstruction of his judicial nominees at the front and center of last year’s re-election campaign. When he was rewarded with re-election, one of the first acts of his second term was to renominate every filibustered nominee who wished to carry on the fight. As a result, Priscilla Owen and Janice Rogers Brown, among others, were finally seated on the appeals bench this spring. Judge Owen had been waiting for four years; Judge Brown’s nomination had languished for two.
They were confirmed as the result of a deal under which 14 senators–seven Democrats and seven Republicans–agreed not to filibuster except under vaguely defined “extraordinary circumstances.” Conservatives angry that Mr. Bush didn’t nominate Michael Luttig or Edith Jones or Sam Alito to the Supreme Court ought to direct at least part of their ire toward John McCain and Lindsey Graham. These Weekly Standard favorites refused to pull the trigger on the “nuclear option,” which would have banned the filibuster and made it easier for the president to nominate someone with a well-known record as a judicial conservative.
The president’s supporters are under no obligation to support his selection of Ms. Miers for the Supreme Court. But surely conservatives owe him a chance to make the case that his nominee is who he says she is, and to listen to her Senate testimony before making a final decision about whether to oppose her.
Any president is due some deference under the Constitution in his choice of judges, and given his record on picking judges, this president deserves more than he has received.
I also agree that Jeff Goldstein of the blog Protein Wizdom offers quite a compelling argument to supporters of Ms. Miers which is worth checking out
Bushâ??s poll numbers show him at 42-44% approval; but where he has taken his hit is among Republicans, who are giving the President a 76% approval rating. Were that number to return to earlier figures, Bushâ??s overall approval rating would likely move back into the 52-53% rangeâ??quite in keeping with what one would expect in the current political climate.
And the way to do that is to rally conservatives by actuallyâ??publically, openly, and without fearâ??nominating conservative Justices and then standing behind both them and the judicial philosophy they represent.
Choosing instead a stealth nomineeâ??though possibly quite a pragmatic political decisionâ??suggests that the minority controls the power, and that there is something untoward about pushing for the kind of openly conservative Justice that a Republican President should be nominating to the Supreme Court.
John Roberts was, in my estimation, the perfect stalking horse. He was clearly legally conservative, and those who voted against him did so under the pretense that he didnâ??t give them enough to go on. So why not nominate someone every bit as conservative who has a track record? Force Schumer and Feinstein and Kennedy to reject conservatism on the record, rather than allowing them to deliver dissents on pretenses that are laughably disingenuous.
If not now, when?