The Miers Nomination

President Bush's nomination of Harriet Miers to replace Sandra Day O'Connor combines three important requirements for this President. First, Miers is a woman, preserving the number of women currently on the Court. Whether this means that there are now two "women's seats" on the Court is anybody's guess, but it does suggest that Bush felt considerable political pressure to maintain the number of women currently on the Court and he was not willing to oppose that pressure.

Second, Miers is a long time friend of the President's whom he trusts on a personal level. This gives him information about her beliefs and values that most other people are not likely to have. It also allows Bush to have a far greater degree of comfort in making a lifetime appointment, because he will have a somewhat better ability to guess how Miers will likely respond not only to the key issues of the moment but to unknowable problems in the future. When in doubt, this President has turned to trusted aides and associates, and promoted them. The Miers nomination is yet another example. The advantage of this strategy is predictability (for the President, as opposed to the public as a whole); the disadvantage is the danger of cronyism. Although we don't know much about Miers, it's likely that, like John Roberts, she was picked with a view toward protecting executive power.

Third, Miers is a "stealth" candidate, who has not written or spoken much about the key issues that fill the Supreme Court's current docket. Presidents will turn to such candidates when they have to please many different constituencies in their party and when they face the prospect of a significant confirmation fight if they choose an ideological stalwart. President Bush is often said to avoid the sorts of decisions his father made, but in this respect George Bush is taking a page from his father's playbook. Hoping to avoid the confirmation battle over Robert Bork, President George H.W. Bush chose David Souter, about whom little was known when he was first nominated. (Unlike Souter, Miers is a stealth candidate about whom the President has lots of information unavailable to the public.) Choosing a stealth candidate is a sign that the President wants to avoid a fight, either because he is in a relatively weak political position, because he fears that his supporters disagree among themselves, or because he would rather expend his energies and influence elsewhere. All three of these seem to be the case right now.