Revolt on the Right?

By Howard Kurtz
Washington Post Staff Writer
Tuesday, October 4, 2005; 8:27 AM

An hour after Bush nominated Harriet Miers at the deeply strange hour of 8 a.m. eastern, I realized the nomination had problems.

Not on the left, but on the right.

Weekly Standard Editor Bill Kristol was on Fox, saying the conservatives he'd talked to were demoralized, and that the president had "flinched" from nominating a more qualified and hard-line conservative. Laura Ingraham was unenthusiastic. The right-leaning bloggers sounded deflated. The libs were limiting themselves to saying the White House counsel didn't have much of a record--which of course is confirmation gold.

(By the way, after a prime-time rollout for John Roberts, why would Bush have announced Miers on television at 8, which is 5 a.m. on the West Coast? Was the thinking to have clips of her dominate the cable/evening news cycle all day before today's papers could weigh in? Her schoolmarm persona has got to be a plus--she just doesn't look threatening. The cable networks soon moved on to weather reports, hurricane cleanup, etc. Everyone knew so little about Miers that the commentators soon ran out of things to say.)

What's really struck me is that, in sharp contrast to the Roberts pick, no one that I've seen is saying this is a home run or a brilliant nominee. The most positive arguments in favor of Miers seem to be 1) she may be better than we think because we don't really know her views, and 2) Bush has known her a long time and we trust him to do the right thing, if not the Right thing.

National Review's David Frum , who worked with Miers in the Bush White House, was up early with negative reaction, calling the nomination "an unforced error. Unlike the Roberts' nomination, which confirmed the previous balance on the court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades - two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court.

"Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons: the personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the US Senate - in other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either. . . .

"As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best ?

"I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated . . . I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or - and more importantly - that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left."

Kristol was soon up with his own piece that pulled no punches:

"I'm disappointed, depressed and demoralized.

"I'm disappointed because I expected President Bush to nominate someone with a visible and distinguished constitutionalist track record--someone like Maura Corrigan, Alice Batchelder, Edith Jones, Priscilla Owen, or Janice Rogers Brown--to say nothing of Michael Luttig, Michael McConnell, or Samuel Alito. Harriet Miers has an impressive record as a corporate attorney and Bush administration official. She has no constitutionalist credentials that I know of.

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