Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Thursday, October 27, 2005
So she's out of there. What now?

President Bush has, without question, been badly weakened by the whole Miers business. In this weakened state, the President's options are severely limited.

He could pick someone who would thrill the conservative Republican base, like Priscilla Owen. The problem is, the odds are kind of high that Bush would lose a fight for her nomination. Conservatives, in attacking Miers for being an unreliable conservative, have made it impossible to shame Democrats into supporting a qualified nominee whose ideology they oppose, and we already know that the Democrats can impose pretty stiff party discipline themselves when they put their minds to it (and they will, believe me). Republicans, meanwhile, in attacking the President's selection, have made it impossible to shame wayward Republican Senators - Olympia Snowe, Lincoln Chafee, Arlen Specter, Susan Collins, maybe someone else though I think that's the list - into voting for a nominee whose ideology they oppose out of deference and party loyalty. Certainly, Bush will have trouble mustering support to break a filibuster or to ban filibusters of judiciary nominees; no member of the Gang of 14 is going to want to change that rule by one or two votes.

He could go the other way, and nominate someone who would win lots of Democratic support, like Maria Consuelo Callahan. Such a nomination would force GOP Senators to decide if they are really willing to vote against a manifestly qualified nominee simply because she is not conservative enough. If they do that, (a) they destroy what's left of this Presidency, and (b) they destroy what's left of the principled conservative argument with respect to the judiciary: both parties would now agree that nominees should be evaluated first and foremost on ideology, and maybe even simply on outcomes. Such a result would not only be bad politics, it would be terrible for the judiciary itself. Trouble is, if Bush did nominate someone like the dancing judge, and the GOP Senate voted in favor, say goodbye to 2006, because the base is staying home. She seems like a perfectly acceptable candidate for the Court to me, though not a home-run, but I'm not an outcome-oriented partisan on judicial issues. And she manifestly fails pretty much any litmus test you like in terms of desired conservative judicial outcomes; she's not a "solid" vote on anything the social right cares about, at least so far as I can tell. (She doesn't have a big paper trail on this stuff, actually, but I'd be shocked to discover that she's secretly harboring ambitions to overturn Roe the minute she gets on the Court.)

He could go yet a third way, and nominate someone who would be hard for Senators to oppose - for example, a sitting Senator. John Cornyn is one option; Orrin Hatch is another; Mitch McConnell a third; Arlen Specter (admittedly, a very unlikely choice) a fourth. It's hard to know whether Democratic Senators would really be ashamed to vote against a fellow Senator, even if we were talking about a Cornyn whose views they comprehensively disagree with. It's also hard to know whether the President would be willing to nominate someone from the Senate given how annoyed he must be that they effectively killed the nomination of his friend. Senator Cornyn is a possibility, though, because he strongly and vocally supported Miers, and that's probably going to be a shibboleth for the President going forward on all matters judicial: if you opposed Miers, he's not going to listen to you. Of course, we don't know if any of these guys want the job.

He could also simply repeat the Miers nomination, but without the unique problems of that nominee (poor vetting, terrible communication skills, issues of judicial independence). In other words: he could pick another obscure individual with whom he's personally comfortable and who pleases big business but who is a non-entity in terms of a paper trail on hot-button issues. Just not someone who was his personal lawyer. (Alberto Gonzales is ruled out because that would be just *too* close a repetition of the Miers experience; all the same issues of judicial independence and cronyism would be raised all over again, plus the social right already distrusts him.) This would be a variation on the Consuelo Callahan option, in the conservative groups will be frustrated if not outright angry and Senators in that camp will have a tough decision to make, but it's just barely possible that the President could thread the needle and come up with someone who is more palatable than Miers to the base without actually being a clear win for the social right, and therefore plausibly confirmable.

Finally, he could try to find another John Roberts, someone manifestly qualified, with a paper trail that reasonably reassures the right, but who is sufficiently cautious and deferential to the legislature that at least five Democrats find it impossible to vote against. There is not a long list of options like this. Harvey Wilkinson certainly fit the bill, but President Bush apparently didn't like him. Michael McConnell might, although he has been very vocal in his criticism of Roe, but McConnell is probably disqualified for two reasons: criticizing Bush v. Gore and being unreliable on issues of Presidential powers in wartime (both, in my view, reasons to recommend him, but I suspect the President would see things differently).

Like I said, Bush doesn't have any easy choices here. My suspicion is that he's going to make a very conservative calculation about confirmability, and that therefore the least-likely outcome is someone who is a movement conservative pick. Frankly, even if confirmability were not an issue I think the President's pique at the conservative movement would motivate him not to pick someone from that list. But Senator Cornyn is a possible exception, someone whom conservatives would like, whom the President would be willing to reward (because he strongly backed Miers), and who is (probably) confirmable because he's a sitting Senator.