Monday, October 24, 2005

What Should Democrats Do About Miers? Beyond the Popcorn Strategy


What should the Democrats do about the Miers nomination? Currently, the Democrats are engaged in a "popcorn" strategy. Metaphorically speaking, they are sitting back, munching on popcorn, and enjoying the show as Republicans fight among themselves. They are silently being entertained while the Republicans use their well-honed skills of attack politics against each other.

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.


Jack, your scenario number three would be the option I would advise the President to take for one simple reason: If he can get SDOC to definitvely resign at the end of the next term, then there will be a vacancy, and he will have the recess appointment club to offset the Gang of 14's power.

Also the Democrats can use the hearings to bring up Bush's National Guard 'service'. Littwin's testimony could be very interesting.

That's remarkably similar to what I, a conservative, emailed to a liberal friend and democratic party activist a short while back. It's not unique; a lot of D.C. conservative attorneys are thinking along the same lines. You'll note that Boyden Gray, Carter Phillips and Ted Olson aren't exactly standing on the sidelines cheering here; this really is about a principled approach to the law.

I think we differ in that the fundamental presumption of this post is that the administration suffers from endemic corruption and the economy is really awful - assumptions I believe to be untrue, New Orleans problems notwithstanding - but otherwise I agree in the analysis. Democrats could easily make a big stand out of rejecting Miers because she is too low quality, bring a few conservative senators along for the ride, and then accept a high quality nominee of proven credentials and ability like McConnell. Sure, McConnell would be damaging to the liberal legal/political agenda in the long run, but he is only one vote. This strategy would also leave the Dems well positioned on the judiciary issue going into the next election - "we want excellence, not party hacks and cronies." I don't think the Dems will do this, however; as a party, they never miss an opportunity to succeed tactically, and to fail strategically. The Republicans on the other hand usually work in precisely the opposite fashion, so Miers may get pushed through on the strength of presidential will and threats, and the odor of pork; but this will have damaging long term effects on the base.

FYI, I supported the Breyer nomination for the same reason I think Dems should support any high quality conservative nominee, and for the reasons stated by Prof. Balkin. I may not get my way all the time, but I’d rather have a smart liberal justice with integrity and a sense of modesty on the bench, than a conservative idiot who rules in my favor yet does long term damage to the law with her lack of critical thinking skills and blind arrogance about unintended consequences. Most of the conservative attorneys I know are of the same mindset. The integrity of the law must be preserved over the long run, we cling to various versions of old school textualism because we think it’s the best way to accomplish that, not because it’s an interpretive method our politics drove us to – even though our politics may have at first driven us to look in that direction at the outset.

Here's the thing about the Gang of 14: it means that in order to invoke the nuclear option and confirm a nominee whom the Democrats would like to filibuster, six of the seven Republicans involved in the deal would have to determine that the nominee does not deserve an up-or-down vote.

I cannot see Bush having that problem with Luttig, McConnell, Wilkinson, Easterbrook, Kosinki, Jones . . . anyone but Janice Rogers Brown, really.

I'd rather a brilliant, principled justice --- even one who regularly finds against my interests, but does so in a cogent, well-reasoned way, and who might, on occasion, find in favor of causes I support for reasons I don't support --- to someone who will only regularly support big-business and pro-administration policies.

Then again, I realize that The West Wing is but a happy fantasy.

This is a wonderful post, especially the last paragraph. You probably know, but other readers might want to know that Epstein & Segal's recent book, Advice and Consent, has an interesting discussion of the impact of "qualifications" (albeit defined very crudely in the model they use) on a nominee's prospects at pages 102-06. They conclude that "qualifications" actually matter as an empirical matter and so your advice to Democrats strikes me as well within the politically feasible.
I will say, though, that I think the following statement is not quite right: "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." At least, I will say that the "twentieth century" qualification is not quite right. In the twentieth century, the only nominees to have been either rejected by the Senate or withdrawn by the President are (in reverse chronological order) Douglas Ginsburg (1987), Robert Bork (1987), Harrold Carswell (1970), Clement Haynsworth (1969), Abe Fortas (for the Chief's position in 1968), and John Parker (1930). The Fortas withdrawal, I think, belongs in its own category because President Johnson never got a chance to make a second nomination. Chief Justice Warren's replacement was, of course, chosen by President Nixon.
Other than that, if we focus on the *second* pick for a particular slot (and assuming we call Miers the first pick for the O'Connor slot, notwithstanding the official withdrawal of John Roberts for that position), the President's choices have not exactly been moderated. The originally defeated nominees, have been Bork (followed by Ginsburg - Kennedy was #3 to replace Justice Powell in 1987), Haynsworth (followed by Carswell - Blackmun was #3 for Fortas's spot), and Parker. I think your statement arguably holds for the defeat of Judge Parker, which was followed by the nomination of Owen Roberts (it is of course only now that the famous "switch-in-time" Justice must have his first name used!). Even there, however, Parker's defeat was probably a mistake, and President Hoover was, in any event, conscientious in his nominations as a general matter: his other two appointments were Hughes as Chief Justice and Cardozo to replace Holmes in probably the most "qualifications"-laden, apolitical appointment in the history of the Court. But, in the other two instances, Haynsworth was followed by Carswell, and Bork was followed by Douglas Ginsburg. In neither case do I think it is fair to say that the second choice was really moderated. Both nominations, I think, have an element of "spite" to them. Both of these second nominees were viewed as just as "ideological" as the defeated nominee and less qualified to boot. [I say this notwithstanding the fact that I think extremely highly of Judge Ginsburg. Still, I think Reagan and his attorney-general Ed Meese wanted to stick it to the "liberals" who opposed the original nomination of Bork by nominating someone just as conservative but with lower qualifications.] It was only after the *second* defeat that the two Presidents (Nixon and Reagan) came up with the more moderate appointments, Justice Blackmun in the case of President Nixon and Justice Kennedy in the case of President Reagan. How exactly this might play out in President Bush's thinking in the event of a withdrawal or defeat of Miers is of course anybody's guess. I just wanted to flag the historical issue you raised.

Of your three scenarios, the first is the one that seems overwhelmingly likely. Going with someone whom Harry Reid pointed out as acceptable didn't help Bush much, so now he's going to nominate somebody whom he knows he can confirm on the strength of Republican support. So we get a substantially more right-wing nominee. When McConnell or Luttig gets on the court, we may be wishing we had Miers back.

It may also help foster a centrist coalition that can do business in Bush's second term.

This doesn't make sense. The GOP Miers opponents would most likely be people on the far right like Brownback. Miers has already shown acceptability to the 14. A coalition of Democrats and right-wing Republicans is not going to last very long.

By all means, vote her down after hearings. But do not, under any circumstances, encourage Bush to withdraw the nomination before then. The country needs to understand just what sort of a candidate the President has nominated.

First, if Miers is voted down, Bush will be weakened no matter what else happens.

I've always been skeptical of this kind of claim. Can you address what it means to be "weakened" as a sitting president? Can we assume that some mystical process will occur wherein Republicans will stop voting lock-step with Bush on e.g. evil "homeland security," tax, and environmental legislation just because he lost a battle over a judicial nominee? Or that his subordinates in the executive branch will somehow stop obeying his orders?

What does it mean to "weaken" a sitting, second-term, president by causing them to lose a vote in Congress?

You know, one other smart solution for Bush, which would assure him of a confirmation, and yet, give him a very conservative nominee, would be to nominate a sitting Senator.

Consider the situation if Bush nominates, say, Hatch, or, Cornyn, or Graham (he may not take it, though).

Collegiality would impel every GOPer and at least some Dems to vote for them, the person would have stellar Conservative credentials, would be well known to the base, and, would not need vetting at all!


The larvae you see today would grow into a large butterfly tomorrow. Size is what you see now, allow the clock to tick, then check on the size again.
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