TCS Daily

Nomination Reparation

By Ryan H. Sager - October 27, 2005 12:00 AM

The Harriet Miers nomination is dead. Long live the Harriet Miers nomination.

The political fallout from the Miers withdrawal will likely be minor. The Democrats will get a day of Snoopy-dancing, and conservatives will get a day of tearful embraces -- brothers and sisters laying down their arms. But the long-term impact on the judicial selection process is (at the risk of being optimistic) likely to be positive.

If nothing else, Miers has proved that the vaunted "stealth nominee" tactic is a game of Russian roulette -- not just for the Constitution and the American people years down the line, but for the president pulling the trigger in the here and now.

Sure, with the perfect, straight-A, spotless-attendance, gold-starred, shiny-haired, white-teethed, adorable-childrened, Reagan-White-House-tenured Judge John Roberts, you can get away with it. Conservatives have already forgotten how perplexed and disappointed they were by Bush's first Supreme Court pick. The sheer glint in his eye and unflappable competence calmed them like a cool, September breeze.

But there just aren't that many John Robertses in the world, with impeccable resumes and non-existent paper trails, both at the same time. Jokes about cloning John Roberts were made when he was confirmed. Now, conservatives are thinking of lifting Bush's federal-embryonic-stem-cell-research-funding ban -- if it might help the process along.

Bush found out that if you're going to eliminate from the selection process every serious and principled conservative jurist and legal scholar right at the outset, there's a pretty limited universe of qualified candidates to chose from. So limited, in fact, as to be virtually non-existent.

Now that Miers has left the stage, there is the risk that a petulant president will pick a nominee wildly unacceptable to his conservative base, but confirmable by the Democrats and some GOP moderates -- simply out of spite toward those who betrayed him ("I know it was you, Frum. You broke my heart!")

If he takes responsible counsel, however, he will begin looking at the serious conservative candidates (yes, likely women, such as Priscilla Owens, Janice Rogers Brown, Edith Jones or Edith Clement) and a serious confirmation process.

But aside from the immediate crisis, this entire episode should also make conservatives think a little harder about the twin ideas many of them had advanced about the judicial confirmation process in general: that a president is due a virtual rubber stamp on his desired nominee, short of massive ethical problems or utter incompetence, and that a nominee cannot properly be questioned on any matter that may conceivably come before the Supreme Court.

No sensible process can have administration hacks winking and nodding until they pull a neck muscle to convince the base that those questions that can't be asked before the Senate have already been asked in other forums.

We never got to see the spectacle that would have been the Miers confirmation hearings. Instead of looking for her positions on controversial issues, hostile senators might have just turned the whole process into a glorified Constitutional Law exam -- one that, if reports leaked from the administration were any guide, Miers likely would have failed with gusto.

But now future confirmation hearings can be something more. They could be actual explorations of a nominee's constitutional philosophy, as opposed to just recitations of platitudes about strict construction and not legislating from the bench. Any nominee can recite these platitudes, but great ones will be able to take on all comers in defense of their vision of the Constitution.

Bush may have shot himself in the foot with the Miers nomination. But maybe he also accidentally put a bullet through the heart of the proposition that ideology doesn't matter when it comes to the Supreme Court.

Ryan Sager, a member of the editorial board of The New York Post, is writing a book about the future of the Republican Party. He also edits the blog Miscellaneous Objections and can be reached at


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