[Updated, 1:40 PST, below]
The nomination of Harriet Miers now having failed, and the right having gotten a nominee it likes better, will Democrats be able to invoke the “extraodinary circumstances” clause of the current truce in the filubuster wars? Will the Republican base be rewarded for having gambled against Hamilton’s logic that opposition to one nominee can’t guarantee that a subsequent one will be more acceptable?
The Miers nomination fell apart because of criticisms about her placement on what I will identify as two dimensions of evaluation of a Justice candidate. These dimensions are ideology and qualifications.
A poll much discussed over the weekend showed that Americans generally objected to Miers on the qualifications dimension, yet she was withdrawn at least as much because she did not satisfy the President’s own party ideologically. Will public opinion be mollified that the new candidate is qualified, or mobilized that the new candidate signals a decisive ideological shift? That is, Democrats’ rather muted concerns for Miers on the qualifications dimension now neutralized, can they activate the ideological dimension?
The very process of Senate confirmation gives the President the edge (but does not promise deference) in the ideologoical dimension, while also constraining him on the qualifications dimension–as Hamilton argued, Senate confirmation “would be an excellent check upon a spirit of favoritism in the President.”
The base of the Republican party rolled Bush on the idelogical dimension, seeing Miers as not committed enough to “conservative” judicial philosphy. Rolling Bush on ideology was made easier precisely because Miers so clearly failed to meet most observers’ (including that of F&V) standards on the qualifications dimension, being clearly a product of “presidential favoritism.”
The Senate could not be tempted, by the preference they might feel to another, to reject the one proposed; because they could not assure themselves, that the person they might wish would be brought forward by a second or by any subsequent nomination. They could not even be certain, that a future nomination would present a candidate in any degree more acceptable to them [â€¦]
The right has clearly spit in the face of this logic and won, with the subsequent nominee, Alito, clearly being more acceptable to them. Will they also win the next round, over confirmation?
What this all means is that we are back where we were some months ago: A possible looming showdown between the party with the (maufactured) majority of seats and the party with the minority. The Moderate Voice has a good rundown on the possibilities and early reactions.
I still think the right has too weak a hand to prevail in this fight, and that this weakness is the reason why Bush tried to get through a “stealth” nominee in the first place. But the right sure played its hand in getting Miers out and obtaining a subsequent candidate to a large “degree more acceptable to them.”
The next phase will be determined by how united the Democratic party is, and whether it is prepared to play its hand and prevent a President with public approval around 40% from rewarding his base (which is far narrower than that 40%).
Because of the weakened position of the Bush persidency, the Democrats’ hand is stronger now than it was when the Senators in the “Gang of 14″ pulled the Senate back from the brink of partisan warfare some months ago. But it might be weaker than it was before the Republican base forced Miers out. The qualifications charge cannot be used against this nominee, so they will have to make their case specifically on ideological grounds. Can Democrats mobilize against a nominee who is so clearly better on one dimension (qualifications), even if he is worse for them on the other dimension (ideology)?
It is a shame that Supreme Court nominations work this way, based on adversarial majoritarianism, rather than consensus. I agree entirely that “TheSupreme Court should not be the domain of the stealthy,” as Steven Tayor put it. But I would add that neither should the Supreme Court be the domain of one party’s preferred judicial philosohpy. The democracies in Europe, as well Canada, Australia, and New Zealand, all long ago dispensed with such majoritarian judicial-appointment processes. We are moving very much in the wrong way in this regard.
UPDATE: Of course, the above is all based on the assumption that if the right is happy, those who are not right should be upset and the Democrats (the only force that can stop the confirmation) should be mobilized. But what if Alito is not so bad for liberals after all? A former Republican, Running Scared, suggests that might be the case. If so, then not only might Alito get through, but also that would make him kind of nominee I expected, post-Miers: a moderate, rather than a “hard” conservative (a la Luttig or Owens). In my first post on Miers, I said:
That is, an alternative among the more obviously â€œqualifiedâ€ would have been someone who was a centrist judge with a non-controversial record. Someone less close to the president and thus even less likely to stay close to the rightâ€™s positions.
Running Scared seems to think, the intial rallying on the right notwithstanding, that we may have that: After reviewing many of his decisions, RS says, “he might not be as clear cut of an “opponent” as you may think from the initial flurry of news and blog reports. ”
I want to stress that I have not made up my own mind about this. My initial post here was based on early reactions–using the shortcut of how the base (of each party) reacted.