The President likely feels stuck between a rock and a hard place these days. After weeks of controversy within the Republican Party, his first nominee to replace retiring Supreme Court Justice Sandra Day O’Connor has bowed out—quite gracefully, I might add. The President is back to square one. He must nominate someone new.
Some disgruntled Senators are blaming the “radical right wing” of the Republican Party for the events of this past week. They have encouraged the President to respond to the Miers withdrawal by nominating a “consensus” candidate. A failure to do so, Democratic Minority Leader Harry Reid argued, would “reward the bad behavior of his right wing base.” Senator Charles Schumer seconded Reid’s advice, urging the President not to “listen to that extreme wing on judicial nominations.”
Media outlets seem to agree. The L.A. Times “reported” that the “conservative wing of the Republican Party declared its independence from the White House and asserted its claim to steer the party rightward.” The Philadelphia Inquirer wondered, “If right-wing agita can torpedo a nominee who is an evangelical Christian and who has told friends that she considers abortion ‘murder,’ what sort of nominee will appease them?”
To listen to these disgruntled commentaries, you’d think that the Miers nomination was withdrawn because a bunch of pro-life Republicans dictated the move to the White House. Naturally, liberals would like to promulgate such a perception. If they can sell this notion, then maybe they can also convince a beleaguered White House that only a moderate jurist in the mold of O’Connor is appropriate. But such a story is merely a rewriting of history.
Conveniently forgotten in the political posturing is the fact that some of the most pro-life people in the Republican Party supported Miers. James Dobson, for instance, forcefully argued in favor of the Miers nomination. Dr. Jerry Falwell seconded his sentiments. Pat Robertson went so far as to threaten retaliation at the ballot box against any Republican Senator who voted against Miers.
The pro-life movement did not dictate the Miers withdrawal. Instead, the debate about Miers’s views and qualifications was an honest one, and it was fueled by discontent among mainstream conservative lawyers, bloggers, and commentators. Surely Reid and Schumer don’t really believe that George Will, Charles Krauthammer, and Bill Kristol are hard-right “extremists.”
Moreover, if certainty about Roe is the sole issue upon which conservatives evaluate judicial nominees, then why did so many support the nomination of Chief Justice John Roberts? No one knows what Roberts will do if and when the Court is presented with an opportunity to overrule Roe. Will he overturn the case based upon its questionable legal reasoning or will he uphold it based upon stare decisis? We do not know for sure. Indeed, Roberts himself may not know for sure.
Conservatives did not support Roberts despite Roe and oppose Miers because of Roe. To the contrary, they relied upon appropriate and mainstream criteria to determine their position for or against each candidate.
When Roberts was nominated, some conservatives felt uneasy about the “stealth” nature of his nomination, but they also recognized that a principled stance argued for confirmation of the President’s choice. Roberts is universally regarded as a well-qualified jurist. All evidence indicates that he will work hard to interpret the law accurately. He is an originalist. He does not view the Constitution as a document that grows, evolves, and changes over time. He will struggle honestly with difficult questions of constitutional law. He will ignore his personal preferences, relying solely upon legal considerations as he crafts his judicial opinions. We can ask nothing more of a Supreme Court Justice.
Most conservatives recognized Roberts’s qualifications, and they rallied to his defense. Similarly, many conservatives saw that Miers lacked experience and that evidence of her judicial philosophy was mixed or missing. They rejected implied assurances that she would vote the right way on Roe, and they made a principled decision not to support her nomination.
The President has a responsibility not to let liberal commentators rewrite this history. He should instead focus on keeping the promise that he made during his presidential campaign. He should nominate a well-qualified, conservative jurist in the mold of Justices Scalia and Thomas, just as he did with John Roberts. He should nominate a candidate with a philosophy of judicial restraint. Most importantly, he should nominate a jurist who has demonstrated his ability to maintain such a restrained philosophy throughout his tenure on the bench.
Such a nomination may mean a confirmation fight in the Senate, but this fight is not to be feared. To the contrary, the Miers nomination shows that conservatives are ready to publicly defend their principled view of the judiciary. The President should give them a chance to do so.