- The Washington Times - Monday, October 10, 2005

The line making the rounds among those eager to excuse President Bush for choosing Harriet Miers to replace Sandra Day O’Connor is that conservative opposition to her is based on snobbery.

Thus, Fox News network’s John Gibson demanded of Professor Larry Sabato: “We keep hearing about some conservatives questioning the credentials of Supreme Court nominee Harriet Miers. Is that because — could it be because she did not go to an Ivy League law school, or because she’s from Texas?” Mr. Sabato went along: “Well, these are elites, and the elites come from the same places, and the same schools, and do the same things, and punch the same tickets, and we have seen this for years.”

Oh, please. Anyone with an ounce of sense knows conservatives have a far less elitist outlook than liberals. Conservatives certainly don’t worship at the shrine of Harvard and Yale. If, as David Frum of National Review Online observed, the president had nominated Edith Brown Clement (LLB, Tulane) or Sen. John Kyl (LLB, University of Arizona), conservatives would be jubilant — not fussing that these were non-Ivy League grads.

No, the stinging disappointment we feel is the lost opportunity. For 20 years, conservatives have waited to see Justice O’Connor’s seat taken by an articulate, persuasive, thoughtful and energetic conservative jurist. The talents demanded include, but are not limited to, a philosophical grounding in political theory, thorough familiarity with court jurisprudence over the last two centuries and particularly the last several decades, a skilled pen and a commanding personality.

Ideally, the president would have chosen someone with an established reputation for legal brilliance. Why? Because the task of a Supreme Court justice is to persuade. Even in dissent, his or her reasoning may influence the law and our society for decades. This is not the place for an affirmative action hire (though a number of splendid women judges were available), nor for a fine staffer, no matter how solid and reliable she seems to the president.

It strikes me as incorrect, however, to label this as “cronyism.” It isn’t that Mr. Bush was using this key appointment merely to pay back the loyalty of a staffer (if so, he could have appointed Karl Rove). Rather, I suspect arrogance.

It was probably President Bush’s belief that because Miss Miers has served him so well, she will do the same for the nation. Some of us demur. The two jobs are completely different. Remember the Peter Principle? Besides, isn’t this the same man who believed he could see into the soul of Vladimir Putin?

Others have explained the watchword is “confirmable.” If that were the president’s motivation, he failed to learn from his own success. Didn’t the Roberts confirmation demonstrate there are limits to liberal obstructionism? Judge Roberts was so well-qualified, well-spoken and amiable that his nomination deflated the liberals without firing a shot. Far from launching a filibuster, a number of Democrats wound up voting for Judge Roberts rather than look like extremist zealots.

Most Americans like conservative judges — you don’t have to sneak them in under the radar. The Bork debacle is ancient history. (And most Americans would have liked him if they hadn’t been so misled by smears.) Conservatives had learned from that bitter experience and stood ready with advertising dollars to support any conservative nominee who would be savaged by the Vast Left-Wing Conspiracy. They would not be sandbagged again. Oh, and has anyone in the White House noticed that Republicans control the Senate these days?

Finally, as disgusted as we are with Mr. Bush for this timid and tepid choice, we cannot forget it is Democrats brought us to this pass. I heard an NPR host a couple of weeks ago describe the nomination process as “polarized.” Some professor agreed liberals vote only for liberals and conservatives only for conservatives. Nope. Conservative senators have, for the most part, voted to confirm liberal justices. Justice Ruth Bader Ginsburg was confirmed by a 96-3 vote. Justice Stephen Breyer was approved by a vote of 87-9.

Of course, when conservative senators voted for Justices Ginsburg and Breyer, they could tell themselves that, after all, you couldn’t expect anything more acceptable from Bill Clinton. What do they say to themselves now?

Mona Charen is a nationally syndicated columnist.

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