Sunday, October 9, 2005

Conservatives who have for years contributed time, money, and sweat to help elect Republicans have often been justifiably outraged at how Republicans have then let them down, wimped out, or even openly betrayed the promises on which they were elected.

Much of that frustration and anger is now directed at President Bush for nominating White House Counsel Harriet Miers to the Supreme Court. Why not someone like Judge Janice Rogers Brown or any of a number of other identifiable judges with a proven history of upholding conservative judicial principles under fire?

Looming in the background is the specter of people like Justice Anthony Kennedy, who went on the high court as a “conservative,” but succumbed to Washington’s liberal culture.

The past is undeniable, but also is not predestination. This administration needs to be responsible for its shortcomings, not those of previous Republican administrations.

Rush Limbaugh has aptly called this a nomination made from a position of weakness. But there are different kinds of weakness, and sometimes the difference matters.

President Bush has taken on too many tough fights — Social Security is a classic example — to be regarded as a weak man. What is weak is the Republican majority in the Senate.

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn’t really have a majority to lead. Before the president nominated anybody, before he even took the oath of office for his second term, Sen. Arlen Specter, Pennsylvania Republican and Judiciary Committee chairman, was already warning him not to nominate anyone who would rile the Senate.

Later, Sen. John Warner, Virginia Republican, made a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.

Before we can judge how the president played his hand, we have to consider what kind of hand he had to play. It was a weak hand — and the weakness was in the Republican senators.

Does this mean Harriet Miers will not be a good Supreme Court justice if confirmed? It is hard to imagine her being worse than Sandra Day O’Connor — or even as bad.

The very fact Harriet Miers is a member of an evangelical church suggests she is not dying to be accepted by the beautiful people, and is unlikely to sell out the U.S. Constitution in order to be the toast of Georgetown cocktail parties or praised in the New York Times. Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement.

We don’t know. But President Bush says he has known Harriet Miers long enough that he feels sure.

For the rest of us, she is a stealth nominee. Not since “The Invisible Man” has there been so much stealth. That’s not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans’ Senate “majority.”

There is another aspect of this. The Senate Democrats huffed and puffed when Judge John Roberts was nominated but, in the end, he faced them down and was confirmed by a very comfortable margin.

The Democrats cannot afford to huff and puff and then back down, or be beaten down, again. But they also cannot let a high-profile conservative get confirmed without putting up a fight to satisfy their left-wing special interest groups.

Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say they had no idea and that she stonewalled the confirmation hearings.

The bottom line with any Supreme Court justice is how they vote on the issues before the high court. It would be nice to have someone with ringing rhetoric and dazzling intellectual firepower. But the bottom line is how they vote. If the president is right about Harriet Miers, she may be the best choice he could make under the circumstances.

Thomas Sowell is a nationally syndicated columnist.

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