Balkinization: It's the Groupthink, Stupid. (Or It's the Stupid Groupthink)

It's the Groupthink, Stupid. (Or It's the Stupid Groupthink)

Over at Mark Kleiman's blog, Steve Teles argues that if Bush had nominated someone like Michael McConnell or Michael Luttig, the Federalist Society and related movement conservatives who seek long term changes in legal culture would not be at odds with members of the Christian right and what Teles calls the "electoral wing" of the Republican Party-- those Republicans who just want to win elections and achieve particular policy results.

If Teles is correct, one wonders why Bush didn't try to appease both wings of the party, given that he had more than 50 votes in the Senate, and given that someone like Michael McConnell, at least, had a very good change of avoiding a democratic filibuster. Instead, Bush chose a stealth nominee, Harriet Miers, who now has exacerbated the conflict between the different parts of the Republican coalition. This suggests either

(1) Bush is extremely risk averse to a threat of a filibuster (unlikely, given his past behavior);

(2) Bush was told by members of the Gang of 14 that neither McConnell, Luttig, Wilkinson, or any other conservative with comparably excellent qualifications would be acceptable (highly unlikely);

(3) Bush was determined to nominate a woman, and the Gang of 14 had signalled that none of the women in the group of candidates with excellent credentials would be acceptable (unlikely but not out of the question);

(4)Simple hubris: Bush was being stubborn and engaging in a bit of cronyism, thinking that no one in the Senate would stand up to him; and his advisors, who were distracted and afraid to cross him, couldn't dissuade him from this selection (somewhat more likely).

If the answer is (4), or something like it, this suggests the importance of diversity of opinion and institutional checks on self-dealing and groupthink among decisionmakers. It is no accident, I think, that Harriet Miers was the result of a process led by Harriet Miers herself assisted by other close friends of the President. (Recall that Dick Cheney was the head of the Vice-Presidential search effort, and he ended up becoming Vice-President). Sometimes relying exclusively on trusted aides works, but in the long run it is a recipe for very bad results. The Bush Administration's mishandling of the Iraq war seems to me to be a case in point. (And my suspicion is that much of the responsibility for those bad results can be laid at the feet of Bush's selection for Vice-President.). Bush's selection of Miers already seems to have been a strategic mistake from the standpoint of the interests of his party; only in the long run will we know whether it was also a bad choice for the country.

Posted 9:30 AM by JB [link]

Comments:

Jack: I think you're correct that, among those options, No. 4 is closest to the mark. I think Bush genuinely *preferred* to nominate Miers (or Gonzales), because he inordinately values folks who have demonstrated trust and loyalty to GWB; because they were known quantities; because (in Miers's case) he had little reason before the fact to think that she would elicit this sort of opposition (recall that the balloon *was* floated, and was not shot down); and because he thought it was best that he nominate a woman, and he wasn't crazy about any of the other female candidates, either because they didn't wow him or because they would precipiate a brutal fight in the Senate when he could least afford it.

But, most importantly, because Bush is 100% confident that Miers (and Gonzales) would be completely deferential to the Executive, especially on matters relating to war, security and foreign relations -- and because Executive power is the be-all and end-all for this Administration, eclipsing virtually all other issues combined. (One got a good sense of this right after the nomination, when all of the White House "talking points" focussed on how Miers will be a safe vote to facilitate the President's war on terrorism.)

Of course, of the other candidates you mentioned, Luttig, too, would be a sure vote for sustaining Executive prerogatives -- but nominating him would result in a filibuster or the nuclear option. You're correct that Michael McConnell would be far less controversial than Luttig, and would almost certainly be confirmed -- but they can't really be sure about how Michael would come out on Executive power questions, can they? He's far too much of a wild card, an independent thinker, on that one -- and perhaps even a skeptic about the concentration of power in the President.

The real question is: Why not Alito, or Wilkinson? I suppose the answer is that the President believes in the wisdom, and constitutionality, of sex-based preferences!

# posted by

Marty Lederman : 10:41 AM

I think it's equal measures 3 and 4. Bush believes in affirmative action not as an entitlement, but as a prerogative of power.

I don't know of anyone on the right who wanted this lady nominated, apart from her former colleagues.

I can only imagine what kind of hissy fit those of us on the right would have thrown had Clinton nominated, say, Vernon Jordan.

I think Marty's point about executive power is critical as to why he didn't choose McConnell or Brown. This president values personal loyalty above all. He'll give no room to one who might have the independence of mind to cross him.

# posted by

al : 6:32 PM

I'd also go with a combination of 3 and 4. What I'd like to hear her asked in Committee is somthing like "what criteria will you use in deciding whether to recuse yourself from cases involving the war on terror?"

I understand that Mehlman has already given away some ground on this, and it would be interesting to hear more from her.

# posted by

CharleyCarp : 10:59 PM