What if Miers Loses?

Intrade is usually right. So, let’s assume she is going to be beaten. Bush being Bush, he won’t back down. So it will go all the way to a vote and she’ll lose — let’s assume that happens for the sake of the discussion.

Then what? This is a blog, what the Hell, we can speculate all over the place.

Does Bush say, after this humiliating defeat, “yeah, I was wrong, I have learned, I have grown. I will now appoint a person with a long, published record which will appeal to the Conservatives who attacked Miers successfully”? Why would he?

Or does he instead say, “I cannot get someone known to be a Conservative onto the Court, and I cannot get a stealth Conservative onto the Court. I’ll just pick a Hispanic who is known to not be anti-Roe, since that appointment is ‘historic’ and generates some ethnic balance and is an easy confirmation that gets this over with”?

I have to think it something like the latter.

I am assuming that Bush did not pick someone with a proven record that Conservatives like because he does not think he can get such a person confirmed, or has no interest in doing so. What his motives really were, we may never know.

Bush certainly has no reason or incentive to give the Conservative wing of his coalition anything they happen to want after they went to war with him on this. Bush is in many ways a “Nixonian” president, spending lots of money, relatively pro-Government, not particularly popular, polarizing, more interested in foreign policy than in domestic policy. Perhaps his response to this episode will be similarly Nixonian, “f*ck the Conservatives, they are a bunch of kooks.”

I think we will see a much more “centrist” and “compassionate” President Bush hereafter, after having his throat cut by his own side. Why not? He is not running for anything again.

Or am I wrong for some reason.

(Of course, Harriet may blow us away in the Senate hearings, after all. I look forward to all that. I would love for this to be over with, one way or the other.)

21 thoughts on “What if Miers Loses?”

  1. Lexington,

    Quite the ugly picture you have painted of the situation. So what if Bush turns on his conservative base? What will he do, go moderate? Will he slap a tariff onto imports in some priviledged industry, like say… steel? He might create out of whole-cloth a brand new never-ending entitlement costing us $400 billion a year and rising, like perhaps prescription-drug benefits. Will he go full-throttle and try to open up our borders to all friends and foe who seek entry? Perhaps he could vastly expand the obselete farm-bill as a boon to families eking out a meagre existence on some dust-parched midwest farm (*cough payoff to corporations in Red States *cough). Will he propose tepid temporary tax reform only to abandon it at his political convenience? The list is much longer and we are all familiar with it.

    With the exception of his brilliant foreign-policy skills and his inspiring vision of democracies blooming in distant lands, he does not and will not ever represent conservatives at home. Cheney’s energy policy has been virtually shelved, and it appears that he has given up on his modest social security reform.

    Don’t get me wrong, I see 50% ally and not 50% ideological enemy, and while I do acknowledge that Bush is far better than any alternative he does have his limits of usefulness to the conservative cause. We must work within those limits and push for what we know is the “right thing” and not be afraid of consequences. After all what is the worst he can do, nominate a stealth left-centrist SCOTUS candidate?


  2. Ah, George, we thought we knew ye.

    GWB could nominate the conservative and suggest to fellow Republicans that the nuclear option’s time has come.

    Or are the president, both major parties (acting like two sides of the same coin), and congress, there simply to serve themselves and continually promote big government?

  3. Helen Miers record at the Texas Lottery, Gtech, etc., will wing her, wounded she will withdraw.

    Nothing. He can delay (bad word).. er … hesitate to make a choice .. hell, it took nearly a year to select a US Ambassador to the Court of St. James, and then he sent along a 2nd Hand car salesman to look after his interest’s with the US’s greatest ally (and staunch supporter of a dwindling band of Coalition of the very nearly and almost Willing). Could take six months , even past the mid term elections, a carrot to dangle.

  4. Well, those who think markets are infallible are invited to look at the panic before Bush’s re-election last November. (A panic shared, if I recall correctly, by some at the National Review.)

    As for Harriet Miers, I have yet to see a sensible answer from one of her conservative opponents to this question: If they applied the same standards to Clarence Thomas when he was nominated, would they have opposed him? I think the answer to that is yes — which may be why I don’t see any sensible answers to that question.

    Her career is more impressive than was his at nomination. Both were chosen for political reasons. And both were chosen because they had close relationships with the president.

    Shortly after Thomas was nominated, President Bush was asked by a nasty reporter whether Thomas was the best possible nominee. Bush answered yes, and he may have been telling the truth if you allowed him the silent poltical qualifier, the best black conservative.

    Similarly, Miers may well be the best nominee — if you allow a similar politcal qualifier. She may be the best evangelical woman Bush could nominate. I haven’t heard of a better one, but am no expert on the field.

    Some may object to these political consderations in the choices of Thomas and Miers. I don’t simply because our courts have become, all too often , quasi-legislative bodies, where representation of various groups is not just acceptable, but desirable. I do hope that Roberts and Miers will move the courts away from that role.

    (There are some — even among conservatives — who would oppose any praticing evangelical on the Supreme Court. This kind of exclusion imposes an illegitimate religious test.)

  5. Jim: Markets are not infallible, but Tradesports has been pretty accurate. I agree with your analysis, and I think that the Conservative backlash against Miers is wrongheaded and suicidal. Peggy Noonan compared it to the Tories driving Thatcher from office. If we had a Parliamentary-style system, Bush’s party would be fighting a civil war right now to drive him from office. However, I do wonder what will happen when the smoke clears, once this is over.

  6. You are exactly right. (no pun intended)

    The obvious way he will go is to eliminate the more obvious “defects” in MIers. She will not be a “crony”. She will be a sitting judge. She will be acceptable to some Senate Dems. She will be known to the President only by reputation.

    Connie Callahan is a good possibility. (Im assuming it will be a woman.)

  7. Well, it has reached the point where the various conservative groups (social “conservative”, actual social conservative, fiscal conservative and at least two others I will combine and call structural conservatives) are sick and tired of always being thrown under the bus for this President to “offer a hand out” to reconciliation to the Democrats. Always. Every single time. Almost like he was trying to excise the party of their positions or something.
    It is also the last unbroken campaign promise to the aforementioned conservative groups. As well as arguably the only thing they were going to actually get out of W in the first place. Given the list of problems seen as acrueing from judicial activism, it would have been enough.
    I consider the pressing the GWOT to be a promise to the Jacksonian and Hamiltonian branches and not a conservative issue at all although conservatives may certainly be either Jacksonians, Hamiltonians, maybe Jeffersonains, and maybe somehow even Wilsonians like “W”. And how well that promise to those groups is kept is best described by Cox and Forkum in the following Sensitive War and For Al-Sadr and it has absolutely nothing to do with “W”s betrayal of this campaign promise (and platform plank).
    It would be entirely appropriate for W to insist that he will not honor his campaign promise, it means nothing, and that this candidate must be evaluated on her own even as was Roberts. And then the conservatives would face the position of either opposing a candidate upon potential judicial plilosophy (which they were excoriating the Dems for) or be seen as not following those same positions themselves (it would not be such a betrayal to discuss if this candidate were qualified to be a USSC associate justice, but that is quite different than the philosophy dispute).
    It would also then be appropriate for the conservatives so betrayed to openly discuss if they were going to form a separate political party, press to have the Republican party kick out a sitting president (something not seen since before the civil war) or just openly, publically, and consistantly treat the sitting president, on every single issue, like an opposition President.

  8. If Harriett is withdrawn, or beaten, will Bush go for a conservative? or a “moderate”? I think he would go for a conservative, a good one with a strong constitutional background and risk the fillibuster.

    Because, if he is smart, and usually he is, he will know that he will never get enough Dem votes on a “moderate” to offset Rep loses. But a Harriet humiliation may force the McCain Reps to back a nuclear option against a fillibuster, if needed.

    His only real hope is to repeat the Roberts scenario – immensely qualified constitutional scholar who can wow them one on one and in the hearings. And after Harriet bumblings, he will look really, really good to everybody.

  9. Actually Intrade/tradesports predicts a withdraw before a vote. The confirm miers contract is at ~30% but the “Miers gets 50+ votes” is at ~70%. The 50+ votes contract is busted (money returned) if no vote takes place. Hence the high price. The market says that Miers will win if it gets to a vote but that its unlikely she makes it that far.

  10. Don’t underestimate Bush’s options here; nor the man’s scary ability to rebound when everyone has him cornered and lame-ducked.

    Had he picked one of the very competent but very conservative – allegedly – other hopefuls from the outset, the Dems would have fought a hard and nasty campaign and might have been able to pick off centrist Republicans. It would have been protracted, painful, ugly and expensive.

    Now Bush can pick one of those and count on solid Republican backing; because everyone else just looks ten times more qualified than Miers. He can even settle some scores in the process.

    The Democrats, in a meantime, are in a pickle. They were not anywhere near vocal enough on competence with Miers, which looked opportunistic and cynical; protesting a vastly more qualified judge now will look hypocritical and purely ideological.

  11. Sylvain: Painful? Had Bush selected an “on-the-record” originalist it would have precipitated the very “fight” that conservatives have been asking for for decades. This is a fight that is long overdue. We need democrats to have it on record precisely what kind of government they envision for us. The same goes for centrist rebublicans, for if they cannot be reigned in now when we have 55 members of the Senate, they cannot be reigned in ever!

    For too long the conventional wisdom stood that its better to not fight for something you believe in than it is to fight for it and lose. This is nonsense for it just protects those senators who stand in the way of reform.


  12. Junier, whether you look forward to the fight does not make it any less protracted, harder and yes, more politically and generally painful than say, confirming John Roberts.

    Looking forward to something does not make it easier or less painful for the country as a whole.

    As for your last comment, I am not aware of such ‘conventional wisdom’ nor did my post expose that view in any way. In fact, I am pointing out that with Miers out of the way, it is easier for Bush to name people who, a few weeks ago, would have been harder to confirm.

  13. Sylvain, You are correct in that the last part of my post was directed at the Senators and not to your post. I put it in there however because I thought it was relevant.

    Conventional Wisdom does say “if we won’t get enough votes for this”, or “we can’t confirm him” to not bring so-and-so to the floor. I believe this is an unhealthy attitude, because there is good that can come out of a sensible proposal put on the floor and debated. There is good that can come out of putting a sensible supreme court nominee on the line who happens to be a long-shot. The more Senator X goes on the record as filibustering someone that most people consider “mainstream”, the more that public opinion comes to our side. Perhaps I’m being naive, but I don’t believe that Borking is possible any longer. The MSM simply doesn’t have the punch that it did in the day.

    We vote these guys to come in and fight the fight. Open debate has never been ‘painful’. It is healthy to a democracy! Whats painful was watching the left get away for years trashing the constitution and dividing the nation, and having no one stand up for us and take a stand. Bring on a Janice Rogers Brown. The Democrats may make an ugly scene and actually defeat her nomination, but it would cost them dearly to do so. Then bring on a Luttig and see if they want to dance again.


  14. Junior, I think we’re confusing a bunch of things here.

    First, not bringing someone because they can’t be confirmed is not some kind of weakness. It’s politics. Nominating people *because* they are going to piss of the other side is no smarter than choosing them because your opponents will love them. You want them confirmed. That’s the whole point of the exercise. And some people will not only rally your opponents against them, but some of your own as well.

    Second, if you do want to have a tough and serious debate – with a lot of non-serious grandstanding around it, of course – that gets us somewhere, I think we can agree that Miers was just the wrong package.

    She was, however, extremely useful in one respect : she showed the Democrats willing to tolerate an obviously incompetent nominee on purely political grounds. And she makes individuals like Janice Rogers Brown so amazingly able and competent by comparison that they will get much more solid support from the Republican side of the house than they would have had without the ‘Miers experiment’.

    And this goes back to my original point : this whole exercise may look bad for the White House in the very short term. In the end, it might be able to push through someone who would have been much harder to get through the process only a few weeks ago.

    If there is a political game Bush is exceedingly good at is gambling and losing some now to make some more later.

  15. I disagree, I would like to see the democrats grandstand. Check out this quote:

    Robert Bork’s America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, rogue police could break down citizens’ doors in midnight raids, children could not be taught about evolution…

    While Ted Kennedy actually succeeded in scuttling the unfortunate Robert Bork’s nomination, it also succeeded in rallying legions of fresh new conservatives to the cause, like myself, who saw that something was amiss in Washington and our society. Kennedy–while I’m sure he would try something like this again–would only suffer consequences and would not gain any political capital. This is not the 1980s. We are now the “disintermediated masses” (I love that term).

    Witness the debacle of the Democrats in Minnesota, who turn an ostensibly serious memorial to the late Paul Wellstone into a tasteless pep rally for Mondale–complete with Bush and Republican bashing. This was apparently deemed too tasteless for voters who went on to elect Coleman over Mondale who had been leading in the polls. I want the voters to witness how mean and condescending the Democrat leaders can be every day.


  16. RIF – reading is fundamental. Disregard the entire last post (I wish I could erase posts with this thing).


  17. (1) I’m pleased and surprised by the selection, and (2) It has not “turned out” one way or the other until he is voted in, and the Ds will go all out to stop him — probably. But, my prediction of what Bush would do did turn out to be wrong.

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