What Should Democrats Do About Miers? Beyond the Popcorn Strategy

JB

In the short run, at least, the popcorn strategy makes perfect sense. First, letting Republicans attack each other (and President Bush) helps Democrats further weaken Bush's political standing; Bush must not only keep his initiatives on track in the face of scandals and political opposition, he must also quell rising resentment in his own party and particularly from his conservative base. Second, the strategy of waiting and watching may eventually help Democrats break through the stonewalling of an decidedly secretive Administration. At least some Republicans are now pressuring the President to waive executive privilege and release information about Miers' work for the executive branch. This work may concern some of the most important questions of Presidential power in our era, including questions regarding the executive's use and misuse of intelligence, and the executive's policies regarding the imprisonment, interrogation and torture of detainees. Third, letting Republicans fight among themselves may help Democrats crack the marvelous party discipline that has allowed the Republicans to resist the forces of political gravity for the last five years and govern from the right, instead of having to form a center coalition with substantial numbers of Democrats.

Nevertheless, at some point, the popcorn strategy will no longer prove viable. Democrats must decide whether they wish to join conservative Republicans opposed to Miers and sink her nomination. Assuming that most Democrats hold together, they need only about six or seven Republican votes to do this. Such a coalition would involve strange bedfellows, but that's politics. A few conservative Republican Senators might join with Democrats to signal their growing displeasure with Bush on a wide range of matters or to raise their own profiles for the 2008 Presidential elections. This seems to be Kansas Senator Brownback's thinking, at least. It allows these conservative senators to compete with figures like John McCain, who long ago established his independence from Bush, and Bill Frist, who as Senate Majority leader is virtually required to fight for the nomination or risk a very serious breach with the White House.

One reason why Democrats might hesitate to sink Miers is concern about what might happen next. There are at least three scenarios. In the first scenario, Bush capitulates to his right wing base and nominates a known candidate with excellent credentials who is an ideological conservative in the Scalia/Thomas mold. Then Democrats are worse off than they would have been with Miers.

The second scenario is that Bush becomes angry at his conservative base for its disloyalty, and, weakened by his current political problems (Iraq, Katrina, indictments of his closest aides, etc), decides to nominate a decidedly moderate candidate in the mold of Sandra Day O'Connor, looking to cobble together a bi-partisan majority in the Senate. This strategy works to the Democrats' advantage.

The third scenario is that Bush, recognizing that the 2006 elections are coming up, decides to hold off nominating anyone until he regains some political strength. He hopes to nationalize the 2006 elections around the judiciary and social issues, hoping once again to distract the voters from Iraq, the economy, and corruption. The outcome of this strategy is uncertain, in part because the Republicans basic plan for 2006 is to localize the election, not nationalize it. Bush's plan may backfire if the Democrats do well in the fall elections he may eventually wind up having to choose someone more moderate. In the meantime, Justice Sandra Day O'Connor remains on the Court. This scenario is also fairly good for Democrats, at least in the short run and possibly in the longer run.

Democrats would prefer either the second or third scenarios-- a more moderate candidate now, or keeping O'Connor in place for a while longer. But in opposing Miers, Democrats must consider the danger of the first scenario. How likely is that scenario-- an even more conservative nominee? Historically, when a President is rebuffed in his choice of Supreme Court candidates, he chooses a more moderate nominee who will be easier to confirm. At least that has been the case in the twentieth century. However, the present situation is unique in that the opposition is coming not from the other party but from the right side of the President's own party. Moreover, the President's reverse playbook of his father's administration tells him never to anger the conservative base for very long. That counsels in favor of nominating a more ideological conservative with a considerable paper trail. And that would mean that the Democrats' strategy would backfire.

However, this overlooks the fact that the political features which led Bush to choose a stealth candidate in the first place have not disappeared. Bush is still politically weak. More to the point, Bush must reckon with the Gang of 14. The Gang of 14's agreement to withhold support for filibusters and the nuclear option that would have ended them was designed, among other things, to prevent the nomination of candidates who are too far to the right (and thus would provoke a Democratic filibuster). If Bush lost a vote on Miers' confirmation (or if Miers withdraws without a vote), this would not weaken the Gang of 14; if anything it would strengthen their hand. Thus we must begin with the assumption that if Miers is not confirmed Bush cannot nominate anyone unacceptable to the Gang of 14. And that suggests a more moderate second nomination.

But not necessarily. Bush might be able to find a strong conservative who is also acceptable to the Gang of 14. After all, the flip side of the notion the agreement that there will be no filibusters (except in so-called "extraordinary circumstances") is that elections do have consequences; the existence of an agreement in the center tells liberal Democrats that they must expect (and accept) a fairly conservative nominee. Thus, some conservative candidates, especially those with very strong credentials, would be acceptable to the Gang of 14. The most likely candidates would be people like McConnell or Wilkinson. McConnell would be a particularly attractive choice: he is a Christian conservative with impeccable credentials who is much admired by academics from across the ideological spectrum. If Miers goes down, Bush might well respond with someone like McConnell.

Although this is a possible outcome, there are good reasons for Democrats to hope for the second or third scenarios, and join Republicans in voting down Miers if she fails to impress after her hearings. First, if Miers is voted down, Bush will be weakened no matter what else happens. A weakened Bush is easier for Democrats to deal with, not just on the issue of Supreme Court nominations, but on a whole host of other issues. Second, Bush may still feel a need to nominate a woman or a Latino, which will greatly circumscribe his choices if the nominee must also be acceptable to the Gang of 14. Third, if Miers is rejected on grounds that she is a crony who lacks qualifications, this helps Democrats in the 2006 and 2008 elections; they can run on themes of opposition to cronyism and corruption, and use Miers' nomination as an example. Third, as noted before, fighting the Miers nomination and demanding that the President waive executive privilege helps the Democrats begin to break through some of the Administration's secrecy. It may also help foster a centrist coalition that can do business in Bush's second term.

I have left the most important reason for Democrats to oppose the Miers nomination until the last. It has little to do with strategic political considerations. Democrats, like all Americans, should want the Supreme Court to be staffed with the best possible candidates-- candidates who have the legal skills and expertise to handle the issues that come before the nation's highest Court and who have the experience, judgment and gravitas to make good decisions when the law is unclear or unsettled. The Court needs and deserves judges who are both excellent lawyers and judicial statesmen. As of now, Harriet Miers, for all of her admirable qualities, does not seem to be that sort of person. Perhaps she will convince us otherwise in the upcoming hearings, but if she does not, the Democrats should oppose her. It is true that Bush may nominate someone even more conservative if Miers is not confirmed, but in one important sense this is beside the point. Democrats who care about the institution of the Court, and who care about the future of the Constitution, should want good people on the bench even if their views about the Constitution differ in important respects from their own. That is what it means to act in the public interest and for the public good: to safeguard and protect the vitality and the quality of the key institutions of American government-- whether they be the Congress, the President, or the courts.