Lessons From the Miers Debacle

Yet another reason to thank Sandra Day O'Connor: When she resigned in July, she made her retirement contingent upon the confirmation of her successor. At the time that seemed like a formality. But with Harriet Miers's withdrawal, with Bush's opportunity to replace O'Connor hopelessly entangled with the CIA leak case and all the other rubble of this "fubar" presidency, O'Connor's decision to stay on the Court is looking positively oracular.

Was Harriet Miers's withdrawal a victory for the hard right? Perhaps. But in her letter to President Bush pulling her Supreme Court nomination, Miers showed with precision and clarity how the same qualities that make her such a valued Bush courtier made her such an indefensible choice to replace Justice O'Connor. Even with her own name and intellectual reputation at stake, Miers managed only to parrot the President's own simplistic promise to seek "judges who will interpret the law, not make it."

It's certainly true that over many years Miers veered uncertainly across the abortion-rights spectrum, giving Senator Sam Brownback and other anti-Roe radicals reason to doubt her commitment to their cause. But the corollary is that Miers's flip-flopping left her without support from Republican Senate moderates, let alone Democrats, who might have salvaged a different candidate. Remember, too, the bipartisan fury from Senators Specter and Leahy at Miers's evasive answers on constitutional questions she addressed as White House Counsel. Well before her withdrawal letter talked about the "tension" between executive branch prerogatives and Senate inquiries, Miers made it clear that protecting the White House was still job one. It wasn't Roe that killed Miers.

With the ground now cleared for a new nominee--whose name may not be known for weeks, who will likely not face confirmation until the Senate returns from its holiday recess in January--it's time to take a breath and draw some longer-term lessons from the Miers debacle.

Lesson 1: Intellectual substance matters. While evangelicals were driven crazy by Miers's deviations on Roe v. Wade, much of the opposition came from conservatives sincerely alarmed at the nominee's intellectual paucity. George Will, David Frum, Virginia Postrel and other right-wing critics of Miers weren't just bearding for James Dobson.

Lesson 2: Executive privilege is not absolute. During John Roberts Jr.'s confirmation as Chief Justice, the Bush White House confidently withheld Roberts's papers from his years in the Office of Legal Counsel. In the case of Miers--who lacked Roberts's public record--that same assertion of executive prerogative put the President on a collision course with the Senate. "I am convinced the efforts to obtain Executive Branch materials and information will continue," Miers wrote in her withdrawal letter. Senators-- of both parties--appeared ready to press the White House Counsel on her role in decisions concerning Iraq, torture, Guantánamo and other hotly contested matters.

Lesson 3: Roe v. Wade, once the Republican rallying cry, is now a political bear trap for the GOP. After years of denouncing prochoicers for demanding an abortion-rights litmus test, the President now faces rebellion from the evangelical bedrock so carefully cultivated by Karl Rove. With the emotional stakes for Miers's successor now so high, President Bush and Senate Republicans face an impossible dilemma: whether to satisfy the anti-abortion faction or to alienate the broader American public committed to sexual privacy and keeping government out of the bedroom.

Right now, Miers's failed nomination may appear to be little more than collateral damage to Hurricane Katrina and the CIA leak investigation. But as with the Terri Schiavo case, the failure of Miers and the selection of her successor can only deepen the divide between religious conservatives and Republican corporate interests. With the 2006 elections twelve months away and Republican presidential hopefuls already assessing their strategies, the Miers debacle may turn out to be a defining moment that speaks more about the GOP future than the Bush Administration's past.

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