Thursday, October 13, 2005

Not So Great Expectations for Miers

President Bush has benefited politically from low expectations. During his debates with Al Gore in 2000, absurdly low expectations allowed Bush to claim victory, or at least a respectable showing, by simply managing to show up, stand erect, and not drool on himself. Even in 2004, no one expected much from Bush in debates with his rival John Kerry and low expectations again aided the president.

Low expectations might also help Bush’s Supreme Court nominee Harriet Miers. Conservatives have described Miers as an unqualified mediocrity. Conservative commentator Charles Krauthammer bluntly stated that “if Miers were not a crony of the president, her nomination to the Supreme Court would be a joke.” Former Nixon loyalist Pat Buchanan described Miers’s qualifications for the Court as “non-existent.”

I am no fan of either Mr. Krauthammer or Mr. Buchanan, but I agree with their assessments. However, Ms. Miers now has nowhere to go but up. The reality is that Ms. Miers is an experienced lawyer who headed up a large law firm and has been White House counsel. Although she may not be John Roberts, she will probably be able to present reasonably coherent answers at her Senate hearing. Given the low expectations set for her, this could help swing the dynamic in her favor. The White House might be able to use even a merely competent performance by Miers at the hearing to argue that people have misjudged her.
If Democrats choose to oppose Ms. Miers (and it is not entirely clear that they will do so—Senate Minority Leader Harry Reid initially seemed to endorse Miers, though he has backed away from that position), they will want to consider how the expectations game might play out. They might want to start talking up Ms. Miers’s experience, predicting that she will do at least a competent job of answering questions from Arlen Specter and Joe Biden. She might not be John Roberts, but it is hard to see her dissolving in a pool of diffidence before the Judiciary Committee.

The point, Democrats might remind us, is not only whether Miers is basically qualified or generally competent. It is whether she will answer questions that tell Americans she is in the mainstream. Republicans have opened the door to challenging Miers on her ideology, and Democrats can now do the same. Republican Senator Sam Brownback has made clear he is skeptical of Miers because of her views, or because he cannot be sure what her views are. Brownback complained that when he met with Miers, she would not discuss Roe v. Wade and did not assure him she was prepared to consider overruling the abortion decision. Gary Bauer, a leading opponent of abortion, has said the fact that Miers is an evangelical does not comfort him—he wants to know what she will do about Roe. Senator Jeff Sessions, like Brownback a Republican member of the Judiciary Committee, worries Miers might be another Souter—someone who betrays conservatives on abortion and other issues: “I think conservatives do not have confidence she has a well-formed judicial philosophy, and they are afraid she might drift and be a part of the activist group like Justice Souter has”.

Republicans used to complain about a litmus test on abortion for Supreme Court nominees. Now they have their own test; no one supporting Roe need apply. Conservatives have made clear that they are willing to oppose nominees based on ideology, which means it can’t be off limits for Democrats to do the same. Democrats who oppose Miers should insist she makes at least some of her views known at the upcoming hearing—this can be done without asking for her opinion on specific cases that may come before the Court.

Americans don’t know much about Miers, who has not served as a judge and has not written about the important issues of the day, and we need to find out whether she is an extremist before we hand her a lifetime seat on the Court. The fact that ultraconservatives like James Dobson and Jay Sekulow have indicated they support her, and that Dobson has cited secret information as the basis for his support, suggests Miers may harbor some extreme views. Some Democrats have signaled that they will indeed focus on Miers’s ideology. Senator Dick Durbin says Miers needs to “explain who she is and what she believes.” Senator Charles Schumer said that Bush’s request that we “trust him” on Miers is not good enough.

Conservatives have given a golden opportunity to Democrats who choose to oppose Miers. Questions about ideology are not off-limits. If Miers refuses to answer such questions, Democrats can follow conservatives in saying that the president’s word here is not good enough and they cannot confirm a blank slate to sit on the highest court in the land.

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