I have been thinking about why I am so confident that Samuel Alito will be confirmed comfortably by the Senate, with no filibuster attempt by the Democrats, indeed with a good slice of the Democrats voting for him, and probably after hearings that (alas) break no new ground in candor or “ideological” inquiry. And it occurs to me that the reason is summed up in two words: Harriet Miers.
I mean no disrespect to Ms. Miers, and more importantly, I do not mean to impute a cynically Machiavellian strategy to the president. But if George W. Bush, with or without the willing collusion of Harriet Miers, had planned for things to work out the way they have, they could not have done so more beautifully.
Rewind our recent history just a bit. When John Roberts was first nominated to replace Sandra Day O’Connor on July 19, there were two immediate grounds for objection to him cited by the Left: that he was a man chosen to replace a woman, and that he would presumably move the Court rightward, based on what was known of his record. Roberts’s obvious excellence by every measure that matters for service on the Supreme Court quickly made the “man replaces woman” issue go away, as it just seemed silly and petty to nearly everyone but the professional feminists. Within a day or two, all that mattered was the “balance of the Court” issue, and all attention turned to Roberts’s judicial “philosophy,” and to more specific questions of what he could or should be asked, how much he should be expected to respond, and what point on the continuum between pure speculation and solid certainty about his views would be reached by the end of his hearings. Through August one might have said the temperature of the debate moderated somewhat as the public responded very favorably to Roberts, but it still looked like he could face a tough gantlet to run in the Judiciary Committee.
Then came the death of William Rehnquist on September 3, with Roberts’s hearings set to begin two days later. When the president quickly moved his nomination of Roberts from the associate’s seat to the center chair of the chief justice, the case for Roberts actually became stronger among those naturally disposed against him, as many concluded that a “swap” of Roberts for Rehnquist would probably have a smaller impact on the future course of the Court’s decision-making than if Roberts replaced O’Connor. Suddenly the Roberts hearings, already put off for a week, became a much less high-stakes affair, despite the formally greater importance of confirming a chief justice. Probably Roberts would have been just as cool and competent in any event, but some Democratic senators, on and off the committee, no doubt dialed back their Outrage-o-Meters. The final 78-22 vote on September 29 was a sign of how “safe” many of them felt with Roberts replacing Rehnquist, and the Washington Post’s editorial the week before, chastising minority leader Harry Reid for opposing Roberts, had to be a sign of the same feeling in the liberal press.
But in the meantime, the chance for a second go at replacing Justice O’Connor produced a redoubled effort on the left to press for both a female nominee and a more “moderate” one than Roberts. Strangely, liberals could almost have thanked Chief Justice Rehnquist for dying in timely fashion and helping them dodge a bullet. The pressure in particular for the president to name a woman was ratcheted up considerably.
Now imagine if Samuel Alito, not Harriet Miers, had been nominated on October 3. The mere fact of his maleness would have been enough to set off the whirling dervishes of the Left, and his conservative reputation would have completed the escalation of the debate. Alito’s many sterling qualities, beginning with his superb intellectual and experiential qualifications, would have been far less a part of the conversation if he had been nominated immediately after the similarly gifted and qualified John Roberts. His evident threat to the “balance” on the Court would have produced serious stirrings of filibuster talk among Democrats, and some Republican senators who had joined the Gang of 14 to forestall filibusters last spring might have been talked into acquiescing in the “extraordinary” character of an Alito nomination in early October, especially as liberal activist groups ginned up the talk of “right-wing robed radicals.”
Instead we got Harriet Miers, whose recommendations seemed to be that she was female, known to and close to the president, and otherwise an enigma at best as a future justice of the Court. When her qualifications were rapidly assessed as falling well short of the standard set by Roberts, we were in for 24 days in which intellectual achievement, and the right sort of legal or judicial experience, suddenly looked like the most important things.
In the intra-party debate among Republicans, conservatives all but swore a blood oath that if the president would relent and withdraw the Miers nomination, they would fight like never before for his next nominee (assuming he or she measured up decently by the Roberts yardstick). “Moderate” Republicans like Arlen Specter began to talk about qualifications, and knowledge of constitutional law, as the foremost considerations. Perhaps most importantly, some Democrats, including key figures like Patrick Leahy, sounded some of the same themes, as did some major press outlets.
It’s not just the withdrawal of the Miers nomination that benefits Judge Alito, by making his nomination possible. It’s the fact that there was a Miers nomination at all that benefits Judge Alito, by making his confirmation a virtual certainty. He benefits from the contrast. He doesn’t follow Roberts, whom he resembles in key respects. He follows Miers, than whom he could not be more different. Suddenly his great credentials for this job, which would have been greeted with a shrug on October 3, become the focus of attention on October 31. Politicians of both parties who spent October talking about the importance of constitutional law knowledge, of experience in appellate advocacy and/or judging, and of intellectual achievement, are hardly now in a position to downplay the obvious possession of all those qualities by Samuel Alito.
If I thought that President Bush was deeply cynical, and Harriet Miers a loyal lamb willing to be led to the slaughter in his service, I would suspect that they had a conversation in late September that set this all up. That the president wanted to nominate Sam Alito all along. That he and Harriet Miers were agreed on her lack of fitness for the Supreme Court, and foresaw the events that followed her nomination. That they deliberately created the conditions in which conservatives, moderates, and even many liberals would react to her withdrawal with relief and to the nomination of Judge Alito with gratitude and admiration. That the failed Miers nomination would make “it’s gotta be a woman” go away as an issue for nearly everyone, and bring neutral questions of expertise front and center once again. That it would then be almost impossible for the president’s opponents to generate the political momentum needed to defeat this nomination to the Court.
I don’t think for a moment that these effects were foreseen and planned in the secret councils of the Bush White House. I’m not kidding; I really don’t. It is contrary to everything we know about George W. Bush’s head and his heart to suppose that he would trifle with the future of the Court, with the feelings of his friend and close adviser, and with the sympathies of his own partisan supporters, in such cavalier fashion.
But this president has shown an uncanny knack for recovering from his own mistakes, and turning defeat into triumph. It looks like he has done it again, this time with a reversal of field that makes his prior error of judgment look like it was made by a different person altogether, but that also turns that mistake to good effect. October turns out not to have been wasted time at all, but a month well spent on a debate that helps the president’s new nomination tremendously. Samuel Alito was probably bound for confirmation anyway, but his path has been made measurably smoother by the fracas over Harriet Miers.
–Matthew J. Franck is a professor and chairman of political science at Radford University.