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October 20, 2005

What if the Miers Nomination is Withdrawn?

President Bush has certainly taken a lot of heat, especially from conservatives, over the nomination of Harriet Miers to the Supreme Court. What would happen if the President decided to withdraw the nomination? Carol Platt Liebau, in a column today on Human Events Online, says that withdrawing the nomination would be a terrible move:

First, recall that at the conclusion of the Roberts hearings, Republicans gleefully pointed out that 22 Democrats, led by Senator Charles Schumer (D-NY), had voted against a clearly qualified and truly outstanding nominee at the behest of far-left special interest groups. Forcing the President to withdraw the Miers nomination likewise would open Republicans to charges that the President is toeing a line laid down by a highly energized and vocal interest within his own party. That, in turn, would position the Democrats to argue, wrongly but credibly, that judicial selections are being dictated by an elite cadre of "scary extremists." Hardly the impression that Republicans want lingering in a voter’s mind on Election Day.

Moreover, for the past five years, Republicans have, quite rightly, faulted Senate liberals for imposing an ideological litmus test on judicial nominees. Noting that Ruth Bader Ginsburg was confirmed with a vote of 96-3 and that Antonin Scalia ascended the court on a 98-0 vote, Republicans have repeatedly invoked the days when nominees were evaluated on their qualifications and competence – not on their ideology. By opposing Ms. Miers on the basis of their worst (but yet unproven) fears about her political preferences or philosophy, conservative critics lend credibility to the argument that both judging itself and the evaluation of judicial nominations are irreducibly political exercises.

Finally, a premature withdrawal of the Miers nomination would create other political problems. Outside-the-beltway Republicans, along with evangelical leaders like Dr. James Dobson and Richard Land, look favorably on the Miers nomination. Anti-Miers rationales – ranging from "we're afraid she's not an originalist" to "she's not the best qualified candidate" to "the President should have picked someone else" – simply don't resonate with a significant portion of the Republican base. They see nothing amiss with Ms. Miers' credentials, and are inclined to trust the President's judgment on the nominee given his record on appellate judges, tax cuts, the war on terror and social security reform. Seeking to sabotage the Miers nomination before a hearing creates the misimpression within the party (and without) that some prominent Republicans disdain the achievements of a woman who is, at the very least, an accomplished legal practitioner and trailblazer.

I don't know whether the President expected the criticism he has received especially from fellow conservatives over this nomination. He's not been one to back down from a fight before. My guess is he'll run the risk of having the Senate deny Ms. Miers a seat on the Court before he would withdraw the nomination. Given the political fallout that could occur if he did withdraw the nomination it's probably better to go ahead and fight this one out even if it means losing the battle.

Posted by Tom at October 20, 2005 04:36 PM

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Charles Krauthammer continues his criticism of the Harriet Miers Supreme Court nomination in a Washington Post column suggesting an exit strategy (irreconcilable differences over documents). What I find interesting is his analysis of the President's un... [Read More]

Tracked on October 21, 2005 11:43 AM


On my blog, I wrote a piece in which I said that the Miers nomination should have been a slam dunk, but was mishandled by the White House. Quite apart from any judgment on whether Miers should be nominated, as a political matter I think the President and the Administration ignored their own Roberts-tested strategy on how to get a nominee confirmed.

If Miers' name is withdrawn or she's rejected by the Senate, the next nominee would be subjected to a full and furious, hyper-political confirmation process.

Mark Daniels

Posted by: Mark Daniels at October 21, 2005 01:08 AM