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The Nomination of Harriet Miers
The SettingWith the O'Connor vacancy, President Bush was faced with a setting that was only slightly more favorable than the one confronting President Reagan with the Lewis Powell vacancy in 1987. Even more than O'Connor, Powell was a quintessential swing vote on the Court that was perceived to be equally divided between four to the left of center (Marshall, Brennan, Blackmun, and Stevens) and four to the right (Rehnquist, Scalia, White, O'Connor). Facing a potentially explosive setting (a -3.6 on our setting table), President Reagan tossed in a fireball in the person of Robert Bork, a distinguished academic and jurist who nonetheless would almost surely have joined Scalia and Rehnquist to form a strong conservative bloc of conservative activists on the Court had the nomination occurred in a more favorable setting for the president. The result was a controversial nomination, the likes of which had not been seen since the nomination of Louis Brandeis in 1916, and which generated a battle among advocacy groups in opposition and support that had never been seen. Bork was defeated by a Senate with a Democratic majority. President Bush faces a similarly negative setting (a -3.04 on our table) but he has a strong Republican majority in the Senate, effectively 55-45, that Reagan did not. What he lacks at the moment is the personal approval rating regarding the job he is doing as president, one which dropped 5 points between the announcement of O'Connor's retirement and the nomination of Miers. The O'Connor vacancy featured two aspects that increased the potential for controversy over a more typical vacancy: O'Connor's sex and her position as the Court's median voter who became the critical 5th vote in a number of controversial and significant cases that split the Court into liberal and conservative blocs. In choosing Harriet Miers, President Bush defused the controversy that would have ensued had he appointed another Anglo male to the Court. He may have further avoided the incendiary nominee who would ignite the kind of controversy seen with Bork. Miers is a true stealth nominee. She has little public record that touches upon the significant constitutional issues of the day. Consequently, constructing a substantial case against her that can arouse the public will be difficult for Democrats and liberals, even should they wish to do so. On the other hand, many from the president's own political base of Republicans and social conservatives are frustrated by the absence of strong ideological indicators in Miers. Their dream of creating a Court dominated by a solid conservative majority seemed now a very real possibility. A plethora of strong conservative jurists awaited the call of the president and confirmation by the Republican dominated Senate. When Bush passed them all over in favor of one who was actually on an acceptable list provided the president by Senate Minority Leader Reid (D-Nevada), it was a stake in the heart to many true believers. We now face the possibility of a confirmation process the likes of which have not been seen since that of Sandra O'Connor herself when the only opposition to surface came not from wary yet hopeful Democrats, but rather from socially conservative Republicans focused on the issue of abortion.
Created on October 5, 2005 by GW |
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