A Departure's Lasting Damage
The damage President Bush and the conservative movement have inflicted on their drive to pack the Supreme Court with allies will not be undone by Harriet Miers's decision to withdraw her nomination.
In picking such a vulnerable nominee, Bush single-handedly undercut the conservatives' long-standing claim that the Senate and the rest of us owed great deference to a president's choice for the court. Conservatives displayed absolutely no deference to Bush when he picked someone they didn't like. The actual conservative "principle" was that the Senate should defer to the president's choice -- as long as that choice was acceptable to conservatives. Some principle.
Republicans had railed against Democratic efforts to press court nominees (including Chief Justice John Roberts) for their views on legal issues. Back in July The Post disclosed a planning document circulated among Republicans on the Senate Judiciary Committee. The document said nominees for the Supreme Court should avoid disclosing "personal political views or legal thinking on any issue." Liberals were terribly gauche and inappropriate for wanting to know someone's opinions before awarding that person life tenure on the nation's most powerful court.
But it was neither gauche nor inappropriate for conservatives to demand that Miers clarify her views on a slew of issues, notably Roe v. Wade . When liberals asked for clarity, they were committing a sin. When conservatives asked for clarity, they were engaged in a virtuous act. Thus are conservatives permitted to alter their principles to suit their own political situation.
There was also that small matter of a nominee's religious views. Conservatives condemned liberals who suggested it was worth knowing how Roberts's religious convictions might affect his judging. But when Miers started running into trouble with conservatives, the Bush administration encouraged its allies to talk up Miers's deep religious convictions to curry favor among social conservatives. I guess it's okay for conservatives to bring up religion whenever they want, but never appropriate for liberals to speak of spiritual things.
Even the manner of Miers's exit was disingenuous, not to mention derivative. In announcing her withdrawal, the White House said that "it is clear that senators would not be satisfied until they gained access to internal documents concerning advice provided during her tenure at the White House -- disclosures that would undermine a president's ability to receive candid counsel." Miers's decision, the statement said, "demonstrates her deep respect for this essential aspect of the constitutional separation of powers."
The White House was following, almost to the letter, the exit strategy outlined last week by my conservative colleague Charles Krauthammer. But Krauthammer was honest enough to admit what the White House could not: that all this verbiage was about saving face. The president had to know when he named Miers that her lack of a judicial paper trail would make her advice as White House counsel all the more important for the Senate to know. Bush figured that conservatives would do what they have so often done before: roll over, back him up, resist requests for documents and help him force Miers through. Bad call.
Bush and the conservatives would now like to pretend that none of this happened. The idea on the right is that Bush should nominate a staunch conservative with an ample judicial record and pick a big fight with Democrats that would unite the conservative movement. It's hard to escape the idea that with special prosecutor Patrick Fitzgerald breathing down the administration's neck, the president decided he could not afford any further fractures in his own political coalition. So he threw Miers over the side.
This has been a powerfully instructive moment. The willingness of conservatives to abandon what they had once held up as high and unbending principles reveals that this battle over the Supreme Court is, for them, a simple struggle for power. It is thus an unfortunate reminder of the highly unprincipled Supreme Court decision in 2000 that helped put Bush in the White House. Conservatives who had long insisted on deference to states' rights put those commitments aside when doing so would advance the political fortunes of one of their own.
Miers will recover from all this in a way Bush and the conservatives will not. She has suffered collateral damage caused by a president who did not understand the degree to which his power has eroded and did not grasp the nature of the movement that elected him. And conservatives will come to regret making their willingness to contradict their own principles plain for all to see.