Bush Plays Delicate Defense Game As Many Conservatives Rebel

The White House is at war.

With some Republicans.

President George Bush is now playing defense in a battle no one would have predicted he would have to wage: a battle to convince many in his own party — many social conservatives and libertarians — that a nominee he picked for Supreme Court justice is qualified.

Call it the GOP Insurrection of 2005. But will it last? — Because there are already signs that some of the tough-talking rebels are giving up and falling back, lockstep into the RNC/talk radio host led line. Values and realities are eventually adjusted to pronouncements from on high.

It’s a battle peppered with dilemmas and consequences for the White House:

1. In trying to communicate to conservatives that Harriet Miers is a good choice Bush has had to say she was the very best candidate a search (that she helped conduct) could find. Charges of cronyism bubbled to the surface as soon as GWB announced the he had picked his lawyer for the seat. Each time he talks to the conservatives to reassure them, it raises Democratic eyebrows a bit and could increase resistance to her nomination.

2. If she’s approved, it may mean that Bush will have to nominate whomever his conservative base wants if another Supreme Court seat opens up. It’s hard to imagine him following up such an unpopular choice as this with Attorney General Alberto Gonzales.
3. If she’s rejected, what does Bush do then? Appoint a more hard-line conservative and unleash the filibuster, nuclear option, etc.? Or try another “stealth” candidate? Or go with someone who has a paper trail. Can John Roberts be cloned?

The Houston Chronicle reports:

Since announcing her nomination Monday, Bush has been assailed by Republicans who complained that Miers lacks credentials and a clear track record on issues such as abortion, same-sex marriage and affirmative action.

Many Republicans also have spotlighted Bush’s campaign promises to fill Supreme Court vacancies with nominees in the style of Justices Antonin Scalia and Clarence Thomas, two of the court’s staunchest conservatives.

“She’s a very gracious lady, and I’m sure she’s a conservative, but there’s no way this woman is qualified for the United States Supreme Court,” Republican author and commentator Patrick J. Buchanan told ABC’s Good Morning America. “If she had not been female and not been the president’s friend, she would not have one chance in a thousand of being nominated to that court. And some of us were hoping for a great appointment of a judicial conservative, a constitutionalist.”

Read the New York Times report on GWB’s press conference yesterday and you sense a President who has stubbed his toe, is suppressing a scream, trying to smile and making things worse when he speaks:

President Bush on Tuesday defended his latest choice for the Supreme Court, Harriet E. Miers, from complaints on the right that she was not conservative enough and from accusations on the left that she was a White House crony unqualified for the job.

The president also said he did not recall ever talking to Ms. Miers, whom he has known for more than a decade, about her personal views on abortion, and he reiterated that he was a “pro-life president” who nonetheless had no litmus test on the issue for judicial candidates.

He insisted that Congress and the American public would come to be impressed with Ms. Miers, the White House counsel and a former president of the State Bar of Texas who was once Mr. Bush’s personal lawyer.

“I can understand people not, you know, knowing Harriet,” the president said in a 55-minute news conference in the Rose Garden at the White House, designed in large part to bolster Ms. Miers’s position as many conservatives remained agitated about the choice the day after she was selected. “She hasn’t been, you know, one of those publicity hounds. She’s been somebody who just quietly does her job.”

However, Bush’s problem is that critics aren’t saying Miers flew under the radar — but that she was nowhere near the radar box.

And his contention that he never ever discussed abortion with her won’t convince everyone. There were qualifying phrases in the answer to that one that will concern Democrats and should cheer skeptical Republicans. Read the press conference transcript.

Meanwhile, the Hill reports a novel argument the RNC chairman is using to sell Mier’s nomination: it’ll help the war on terrorism:

Mehlman yesterday unveiled a politically powerful argument linking Bush’s nomination to the war on terrorism. He said that, as a former White House counsel, Miers would know the importance of not letting the courts or the legislative branch “micromanage� the war on terrorism

Will it sell?

Or will GOPers ask: you mean, there are no other conservative and Republican judges who can look at this concern, use his/her judicial judgment and cast a vote on it?

According to The Washington Post, “top White House aides and Republican National Committee Chairman Ken Mehlman launched a behind-the-scenes barrage of phone calls and e-mail to influential conservatives urging them to overcome their skepticism.” And liberal groups? Many have said they’re taking a wait and see on Miers — a signal that they are reacting better to her being named than some conservatives — breathing a sight of relief that Bush didn’t pick someone “worse.”

Perhaps the most devastating column written by a GOPer on the Miers nomination — perhaps one of the most devastating columns ever written about the President by a Republican during his whole term — comes from George Will in a piece titled “Can This Nomination Be Justified?”

Will leaves little doubt what his answer is. Here are just a FEW of the zingers:

Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption — perhaps rebuttable but certainly in need of rebutting — should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.

And that’s where he’s being gentle. MORE:

The president’s “argument” for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.

Will then goes into the key part of the Miers nomination that is sticking in the craw (wherever that is located) of conservatives — and that Democrats clearly feel, too, but they seem willing to take the risk, fearing the kind of “red meat” non-stealth candidate that many conservatives felt they would get from Bush this time around. SO:

It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.

But then there’s his column’s kicker — and it suggests that if Miers does get confirmed then the White House is going to have to use up what little political capital it has among people who have stuck by it no matter what:

Minutes after the president announced the nomination of his friend from Texas, another Texas friend, Robert Jordan, former ambassador to Saudi Arabia, was on Fox News proclaiming what he and, no doubt, the White House that probably enlisted him for advocacy, considered glad and relevant tidings: Miers, Jordan said, has been a victim. She has been, he said contentedly, “discriminated against” because of her gender.

Her victimization was not so severe that it prevented her from becoming the first female president of a Texas law firm as large as hers, president of the State Bar of Texas and a senior White House official. Still, playing the victim card clarified, as much as anything has so far done, her credentials, which are her chromosomes and their supposedly painful consequences. For this we need a conservative president?

(Check out Memeorandum to see how other blogs react to the Will piece) So depending on how you look at it the White House picked a genius pick or bit off its nose, ears, mouth, two arms and legs to spite its face. Choose your belief here:

(1) A MASTERSTROKE: Bush picked someone close to him so he has an insider person on the court. She’s on the same wavelength with him, so she’ll be a perfect legacy. Appointing a woman was important for his legacy. If you look at Bush from the time he first ran for office he has been a friend to conservatives and won’t do anything to hurt the movement or set back its goals. Other candidates had paper trails too long. They would have sparked a Democratic filibuster, which would have led to the nuclear option banning filibusters on judicial nominees and led to more polarization at a time when the administration’s poll numbers took a nosedive and only recently began slowly inching back up.

(2) A MOVE OF SELF-CANNIBALIZATION: Conservatives waited years to get someone who would not have to hide and be ashamed of his/her conservative rulings or inclinations. They worked hard for Bush in two campaigns, expecting to get a court that would clearly generate rulings according to their values. The President ran on appointing conservative nominees.

Unless you believe a fluffy-tailed bunny will hide eggs in your home this Easter, you know she was not the most qualified — or nearly most qualified — person for this slot.

As for Bush’s comments that she is: let’s simply say kiddies may watch his nose now to see it grow…

The White House avoided a Democratic filibuster but at what cost? The Miers appointment has united social and libertarian conservatives in mutual shock and disappointment. There could, in fact, be bipartisan consensus that this is not a quality choice…or…it could be the kind of choice that professional politicos of both parties in Congress could live with — one not as bad as some of the alternatives that could lead to all-out partisan warfare. Partisan activists in both parties feel all-out warfare is worth it.

(3) TOO MANY WILDCARDS: “Assume makes an “ass” of “u” and “me.” And, indeed, here you have conservative Republicans in Congress, in columns and on weblogs assuming Miers is pro-abortion (we are just WAITING for someone to allege she had one) and Democrats assuming she won’t overturn Roe Versus Wade.

No one knows but this is a certainty: (1) she will likely prove more conservative than Sandra O’Connor and (2) the silliness of Ralph Nader’s claim that there was no difference between the two political parties becomes more evident every day (3) the silliness of DNC Chairman Howard Dean’s suggestion that all Republicans are the same becomes more evident every day.

Meanwhile, news reports flesh out more details about her: her strong dedication to church life…..someone described by the Los Angeles Times as being a close companion of hers saying that Miers is against abortion.

So who’s staunchly defending Bush’s choice of Miers? RNC-talking-points-oriented GOP radio talk show hosts and some folks who were initially upset but, after their ire subsided, genuinely feel that Bush deserves their continued trust.

Prediction: enough of the GOP loyalists could return to the fold so this nomination could pass. Could there be bipartisan consensus that her background is not up to snuff?

FACT: There is little sign that this sentiment is coming from an overwhelming number of people in Congress (yet). Most of the negative feedback is from interest groups, columnists and bloggers (who are always cranky about something, yours truly included).

And given the character of this White House, is it within the realm of imagination to believe that her name would be withdrawn if there is rocky sailing?

Remember that fluffy-tailed bunny that will hide eggs in your home?

UDATE: CLICK HERE to watch a video of Jon Stewart’s devastating take on the White House’s problems with conservatives (Stewart as usual uses video clips mixed with irony). Three things jump out at you when you watch this (1) the message the White House is putting out in code words is that she is pro choice, (2) Dobson saying he knows some things he can’t reveal (so who TOLD him — did Miers, or Bush who said he has never discussed abortion with her? Then who?) (3) If you put out a message that is so totally skewered that it becomes a punch line, you and your message are in trouble.

THE MIERS NOMINATION IS A RED HOT ITEM IN BLOGTOPIA. HERE IS A SMALL CROSS-SECTION OF OPINIONS TODAY:

–Stephen Green, aka Vodka Pundit:

Combine Miers’s social conservatism with her perhaps-unknowable views on the Ninth and Tenth (not to mention First and Fourth and Fifth) amendments, and you get a potentially dangerous nominee…

I don’t care if Miers is the perfect “stealth candidate” to the bench. I don’t care if the Democrats are forced to eat crow. I don’t care if my conservative allies are with me or against me on this one. I don’t care if Bush is being clever, or stupid, or just using old-fashioned patronage. What I care about, and deeply, is getting someone on the Supreme Court who we can count on. However, we’re being asked to take Miers on faith – the same faith Bush held in Norm Mineta, George Tenet, and Michael Brown.

–DC Debate (under Conservative Rant):

So once again…why Miers? Because she, to the President, must be predictable and loyal. Because on all issues of life, Miers may be pro-life, Roberts may not. On all issues of presidential defense powers, Miers may be pro-presidential powers and defense, Roberts may not. On all issues of property rights, Miers may be pro-property, Roberts may not.

Maybe the President didn’t pick Ms. Miers because she is a ’stealth.’ Maybe he picked her because she is a reliable and loyal ‘Bush conservative,’ more meaningful to the President and his legacy than John Roberts can ever be.

–Captain Ed has expressed serious reservations and disappointment about this nomination (read his whole post please) but concludes: “The choice has already been made, by the man we elected to make it. We have demanded deference to presidential prerogative from the Democrats for the past five years on judicial nominations, and now it’s our turn to demonstrate that we know what that means.”
–AmbivaBlog:

Sounds to me as if, more than the strict originalist conservative intellectuals were hoping for, Miers in her quiet, under-the-radar way might be the results-oriented activist social conservatives were hoping for. Remember that she and the president have been talking behind closed doors for over a decade. IMO, she is likely to be an eventual anti-Roe vote without attracting the kind of attention and Dem firepower that a higher-profile candidate would. And at 60, she may not have as many years left as a younger appointee, but she’ll be around long enough to help take down Roe. That will be her legacy.

–PSOTD:

The odd thing about the selection of Harriet Miers for Supreme Court is that I don’t believe we really know what it means. But I feel, in my gut, what it really means is that there’s big trouble coming down the pike for the Bush Administration, and they know it, and they want this pick settled up by November 25th because they may have an incredibly short shelf life for getting a selection approved. Why Miers over Gonzalez? Is it because of Miers – or is it because of Gonzalez? Or is it because they are in a hurry to make big news?

–The Anonymous Liberal:

Saying that we should wait and see how Miers performs at the hearings before judging whether she’s qualified for the Supreme Court sounds to me a lot like saying we should wait until the playoffs are over to decide whether Bubba Crosby belongs in the Hall of Fame. Even if he has an amazing series against the Angels, he’s still not going to be Cooperstown material. I’m sure Miers is a capable attorney, but she simply has not demonstrated, either during law school or in her professional career, that she is one of our nation’s top legal minds. I’m not saying that she’s not capable of being a good Supreme Court justice. Perhaps she is. But there are any number of candidates who were infinitely more qualified for the job.

–Hugh Hewett defends the choice and adds this:

The folks who work at the White House don’t talk about it much, but there’s a reason why all the offices in the OEOB are empty now — they can’t be protected from attack all that well. That’s just a reminder that 1600 Pennsylvania is the number one Islamist target on the planet, just as it was a target on 9/11.

Harriet Miers has gone to work in the White House without pause since 9/11, an act of no little courage in itself. Courage is not itself a qualification for SCOTUS, but it does suggest a character that isn’t in danger of being bent by fashion. And it is also a reminder that the snarkiness of some of the attacks of Miers and her background –and especially the charge of cronyism– are ill-considered at best, and ought to be withdrawn.

–Stuart Benjamin:

So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one’s assessment of her jurisprudential views will largely be a function of one’s assessment of: A) Bush’s success in determining how she will likely vote on issues that are important to him; B) What issues Bush regards as important; and C) Whether one agrees with Bush’s position on those issues. For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three.

–Just One Minute: “T-shirt idea: “I Went to the Mattresses for George Bush, And All I Got Was This Supreme Court Nominee”.
–Michelle Malkin who has the most DEVASTATING ZINGER of all (boldfaced 4 U)

Well, it’s a new day. Upon sober reflection, President Bush’s nomination of Harriet Miers to the Supreme Court appears…even worse than it did 24 hours ago. Conservative legal scholar John Yoo sums up the decision as an “opportunity squandered.” A smattering of my conservative readers who are trying to rationalize the nomination point to Miers’ bid to get the ABA to reconsider its pro-abortion rights stance. She tried to change policy. Good for her. But this tells us nothing about Miers’ judicial philosophy or temperament. She isn’t running for city council or state legislature, for God’s sake. Bush has proposed putting her on the Highest Court of the Land, for the rest of her natural life.

Another grating phrase I keep hearing from the few diehard Bush supporters trying to salvage this nomination is that she “opened doors” for women. All well and good. But I repeat: This tells us nothing about Miers’ judicial philosophy or temperament. We need strong conservative intellects on the court. Not bellhops.

–Polipundit reconsidered and decided it’s a good choice and tells you exactly why.
–Irregular Times: “It’s not up to us to play George W. Bush’s game and try to ferret out some hidden detail that would show Harriet Miers is unfit for the Supreme Court. It’s up to Bush to demonstrate in substantive detail that Harriet Miers is fit for the Surpreme Court. Bush is our employee, not our dictator. Bush owes us an explanation.”
–BeldarBlog looks at John Roberts and Miers and finds that she has some excellent qualities.
–Big Brass Blog:

Most real conservatives out there are deeply upset by this nomination, and who can blame them? Getting a really conservative judge to tip the balance on the Supreme Court has pretty much been the central goal of the American conservative movement for the past generation. Now, when the goal was finally in sight, psych! Bush yanked it away like Lucy used to do with that ol’ football.

But honestly, what did the conservatives expect from Bush? I mean, please. The Bush family — and Dubya’s no exception — has always and only been about two things: money and power. Now that Dubya no longer has to run for election, now that his opinion polls are crap anyway, now that he and his cronies in the White House may be getting indicted for federal crimes, of course he’s going to throw over his base. He has no further use for them.

–Ezra Klein: “So am I endorsing her? Nope. But I’m pleased with the pick. At a moment when conservatives could jam our worst fears through the confirmation process, that Bush’s nominee is giving them the shakes is far more than I ever hoped for.”
–Bull Moose:

The Moose analyses the divide among the faithful. Ironically, the Miers nomination has not resulted in a fissure among Democrats but among the conservative faithful. In fact, Democrats are reveling over the Republican imbroglio over the Miers nomination.

There are two distinct camps among the righties over Harriet – the fawning faithful and the reality based conservatives. The fawning faithful are largely faith-based. The leader of this camp is Dr. Dobson who has given his qualified blessing to the nomination.

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