Republican presidents have long been drawn to the “stealth strategy” on judicial nominations, picking conservatives, or supposed conservatives, without a public record so it will be harder for Democrats to oppose them. In the John Roberts nomination, a modified stealth strategy reached its height, giving the Court what is likely to be a conservative chief justice for the next 30 years. In the Harriet Miers nomination, the stealth strategy has all but collapsed, producing what might be the most catastrophic political miscalculation of the Bush presidency.
In picking Miers, the White House out-stealthed itself. The Bush team isn’t fully informed about its own nominee because the process of selecting her was so secretive. She was such a blank slate that many Bush supporters were opposed or noncommittal. In seeking stealthily to avoid a confirmation fight, the White House has instead set up one it might not be able to win.
It created a quarrel with the president’s own political base, much of which cares about excellence on the Court and also wants a nominee with a demonstrated conservative judicial philosophy. Many conservatives–but not all–were underwhelmed with Miers on both counts. This created a roiling split. The Miers nomination is a “wedge issue” in reverse. The classic GOP wedge issues like crime and welfare split Democrats, and set up nasty quarrels among liberals. Miers has done it with the Right, as clashing conservatives denounce one another as “elitists” and “hacks.”
This weakens President Bush for any fight with the Democrats, which is coming. In 1989 Miers filled out a candidate questionnaire when she was running for the Dallas City Council, declaring her support for an amendment to the Constitution banning abortion. It is now impossible to doubt that Miers is pro-life. But did the White House know about this questionnaire before it nominated her? It might not have, because the vetting process for Miers was so truncated, run in secret by her immediate subordinate. Thus the insider nature of this nomination, crucial to its stealthiness, possibly contributed to advancing a nominee who is extremely non-stealthy in her views on abortion.
This sets up a battle on abortion and Roe v. Wade, the very issue stealthiness was designed to sidestep. And it will make Miers run a gantlet–explaining to liberals how her personal views don’t mean she’ll vote against Roe, while not further alienating conservatives who oppose Roe–that even a more experienced nominee would be taxed to survive. If this is the fight the White House wanted, it should have nominated someone like Judge Edith Jones, who is a lightning rod on Roe, but better prepared to defend herself.
Democrats have an abundance of ways to oppose Miers. Qualifications is one. What made the Miers nomination especially stealthy is that she is not obviously qualified for the court. Documents is another. She has very little in the way of a public record–a requirement for any stealth nomination–but the White House says it knows she will be an excellent justice from her work for the president. This is an opening for Democrats to say, “O.K., let’s see the goods,” creating a fight over executive privilege that even Republicans might be leery of backing the White House on.
There is one way that stealthiness is helping Miers. Her nomination would be in an even more precarious state if Republican senators and members of Washington’s conservative legal establishment weren’t too polite, cautious, or cowardly to say publicly what they really think about it. It’s time for the pretense to end.
The stealth strategy always had a whiff of deception about it. In this nomination, the whiff is becoming a stink of contradiction and bad faith. Republican senators should urge the White House to withdraw the nomination. Then Bush can pick a nominee who forthrightly represents his conservative judicial philosophy, and everyone can have a bruising, upfront fight about it. What a concept.
–Rich Lowry is author of Legacy: Paying the Price for the Clinton Years.
(c) 2005 King Features Syndicate