Liberals And The Miers Dilemma

David Corn

October 26, 2005

David Corn writes The Loyal Opposition twice a month for TomPaine.com. Corn is also the Washington editor of The Nation and is the author of The Lies of George W. Bush: Mastering the Politics of Deception (Crown Publishers). Read his blog at http://www.davidcorn.com.

A few days ago, a leading conservative legal activist—a pal of Robert Bork and Edwin Meese—who is part of the crusade against Harriet Miers asked me a question: Would "principled liberals" join the "principled conservatives" who oppose Miers in an effort to sink this terrible Supreme Court nomination. Don't progressives, he asked, agree that Miers was an awful pick and that she is not up to the job? Why not, he continued, make common cause in defense of standards and meritocracy? Save the court with us, he urged.

Well, I told him, I am not an ambassador, spokesperson or powerbroker for liberals. Besides, I continued, many liberals might feel they were falling for a trap: Help Bork, Kristol, Will, Frum, Krauthammer and the rest defeat Miers, and that will hand these conservatives the opportunity to obtain a lifetime appointment for a Scalia-like, made-in-the-Federalist-Society jurist with the legal chops necessary to shape the court for decades. Heck, my conversation mate said, my conservative buddies and I didn't oppose Ruth Bader Ginsburg; we knew she'd be a consistent and smart vote against us, but we recognized her intelligence, legal talent and competence. Why won't liberals take a similar stance now and join with angry conservatives to give Miers the boot?

He had a point. But I noted that since the Supreme Court has become involved in the critical issues of the day—often deciding important political and policy matters (remember Bush v. Gore ?)—perhaps it was time to toss aside the quaint notion that qualifications are the key factor in determining whether a nominee ought to be greenlighted. Why not fully acknowledge that a Supreme Court choice is a significant battle over politics and policy and treat it as such? It's reasonable for a senator to say that if the court has the power to decide whether abortion remains legal, he will oppose any nominee he believes would vote to end that right. This might be a shift in the tradition of advise and consent. But things change. Thus, decisions on nominees can be—and should be—subject to tactical and strategic concerns. Principled liberals, I told this conservative fellow, are not obligated to heed the call of meritocracy coming from Miers' foes on the right, if these liberals believe doing so would lead to an outcome that may be worse for the nation from a policy perspective. Having reached no consensus, we finished our beers.

The next day the protest-too-much Bork pummeled Bush in the Wall Street Journal for selecting Miers: "With a single stroke…the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court…and widened the fissures within the conservative movement. That's not a bad day of work—for liberals." So hold on. If Bork's anti-Miers campaign seeks to move the court to the right, why should liberals sign on?

Yet if Miers is the enemy of liberal's enemies (such as Bork), does that make her a friend? The calculations are not that easy. Look at her friends these days. The social conservatives are pushing for Miers; James Dobson has blessed the nomination. And these conservatives must be heartened by the recent news that she contributed to a group opposing abortion rights and once declared her support for a constitutional amendment banning abortions.

One major advocate for Miers is Jay Sekulow, chief counsel of the American Center for Law & Justice, which was founded by Pat Robertson. In a recent commentary, he declared that Miers "knows precisely what President Bush is looking for, and that is someone that will understand their role as judge and not set social policy from the bench." But it's clear the social cons fancy her because she is opposed to abortion rights and they suspect she will change this particular social policy from the bench. And in a case like the one involving assisted suicide, which was recently argued before the Supreme Court, how is it possible for the justices not to set social policy? Either they will allow the assisted suicide law approved by the voters of Oregon to stand, or they will agree with the Bush administration position (developed initially by then-Attorney General John Ashcroft, after he failed as a U.S. senator to pass federal legislation banning assisted suicides) and declare the Oregon law unconstitutional. This will be a judgment call. There is nothing in the text of the Constitution that definitively decides this issue.

Sekulow and the other social cons have throttled back on the she's-one-of-us (that is, an evangelical Christian) argument, but they still don't have much with which to prop up Miers. Sekulow, for one, proclaimed that her lack of judicial experience is an asset:

Those that have spent their professional career as judges tend to forget the real implications of the decisions they make and the impact that they have on regular people. It will be refreshing to have someone that understands that a decision of the Supreme Court will have real and practical implications on business and in people's personal lives.

Does he really believe that justices who have decided cases involving the detaining of U.S. citizens, affirmative action, abortion rights and the determination of a presidential election do not understand their actions have real-world implications?

Back to the liberals and Democrats' quandary. Why saddle up with Bork and oppose Miers (even if columnist George Will claims the anti-Miers position is the "defense of mere excellence")? Why vote for the woman who has Sekulow and Dobson so excited? Opposing Miers will be striking a blow for standards, but also possibly opening the door to a worse outcome. Supporting Miers will mean endorsing mediocrity and lining up with the social cons, but perhaps preventing Bush from appointing a more frightening and capable conservative? It's intriguing that the anti-Miers right-wingers are neoconservatives, commentators and judicial activists seemingly driven by a desire to have on the court an intellectual powerhouse—someone like them!—who can dominate the process while voting the correct way, and the religious right-wingers appear to be motivated by the desire for specific results. It's a cultural divide on the right.

Should liberals and Democrats choose sides in this shootout between the neocons/legal cons and the social cons? It could be that Miers withdraws either before the November confirmation hearings or after them (if they do not go well). My above-mentioned conservative friend reports that many GOP senators are privately saying that they wish the Miers nomination would disappear and that they do not want to vote for her. But such a wish may not come. And then Democrats—who are now generally standing to the side and enjoying the catfight on the right—will have to render a decision.

Or will they? Here's an idea that I reserve the right to reject upon further reflection: Democrats in the Senate should vote "present" on the Miers nomination. It's not an aye, and it's not a nay. They could argue that they believe this is a substandard nomination that deserves no one's support, but that they do not want to provide Bush the opportunity to satisfy those who are calling for a right-wing jurist who will decisively steer the court further in a conservative direction. Facing two awful options—both bad for the nation—Democrats can assert that they will be a party neither to Bush's cronyism nor to Bork's crusade. Let the Republicans slug it out and bear responsibility for the consequences.

Oh, some cranky think-tankers and commentators will call this a cop-out, a dereliction of constitutional duty. But why validate—or be used by—either side in the Republicans' civil war? Once in a while, the correct response to a situation is, don't just do something, sit there. As the Miers mess continues to unfold—the Dallas Morning News reported this week that Miers' family was paid "18 times the assessed value for Dallas land needed for a freeway ramp" in a decision okayed by a panel that included a friend of Miers—new information may definitively tip the scales for liberals and Democrats. In the meantime, the Senate Democrats ought to consider taking a Hippocratic approach to the vote on Miers' nomination: First, do no harm.