CShine

politicophile,

You share one thing in common with Michael Scherer. Both you and he have completely failed to grasp the political consequences of the Roberts and Miers nominations.

You are wrong when you say the Miers nomination failed because she was unqualified. It failed for TWO reasons, she was both unqualified AND ideologically unproven. This is the criticial point. If she had a long record of publicly championing a broad range of social conservative causes, christian conservatives would've fought tooth and nail to confirm her even in spite of her lack of professional achievement. On the flip side, if Bush had nominated someone who had both sparkling, top-notch judicial credentials and a sparse ideological track record, the christian right would've grudgingly accepted that nominee the same way they accepted John Roberts.

I think we all have to agree that Justice Roberts was and still is a complete unknown on the ideological issues most cherished by the christian right. There are only 3 areas of law where Justice Roberts had clearly-written judicial views prior to his nomination. Those are found in his written appellate opinions which (1) strongly favored a broad expansion of Presidential power in the war on terror, (2) allowed individual property rights to trump federal environmental laws, and (3) expanded police powers while at the same time limiting the rights of criminal defendants.

While those positions are certainly agreeable to mainline conservatives, there is not one single instance where Justice Roberts has publicly championed any of the issues that are considered most crucial by the religious right. He has never taken a professional stance on the abortion question. He has never taken any kind of public stand on the role of religion in the public sphere. Furthermore, he actually gave legal assistance to the team of lawyers who went on to win a major victory for gay rights advocates in the case of Romer v. Evans.

Here's the reason all of that has major political significance.

Remember back to the early part of this year when Congress was fighting over the judicial filibusters that faced Judges Priscilla Owen, William Pryor, and Janice Rogers Brown, among others. All three of them were well-known christian conservatives with well-established professional credentials. In the face of Democratic filibustering the christian right argued that professional credentials should automatically guarantee confirmation. They said that ideology should play no part in the confirmation process and that christian conservatives should all be confirmed on the basis of their proven professional resumes. Then, in the face of that constitutional crisis, we saw the so-called bipartisan "Gang of 14" diffuse that quandry by approving some of Bush's appointees but rejecting others and, in doing so, ultimately leaving the question of the importance of the political ideology of judges to be resolved another day.

For some unknown reason, the religious right thought this left them with total and absolute control of the courts. Then George Dubya Bush threw them a fast one.

When John Roberts came into the spotlight he had sparkling professional credentials of the highest caliber but at the same time he had no publicly-stated opinions which appealed to the christian right. Nonetheless, the christian right could not oppose him because his career reflected the absolute highest level of achievement. They had fought long and hard to get nominees approved on their professional records alone, and John Roberts had the best professional record of anyone who had come along in many decades.

To this day, no one can say for sure if Roberts believes for or against abortion rights, gay rights, or religious rights. Nonetheless, Republican Senators united to approve him because his professional record was top-shelf. Those Senators knew that if they opposed him for his lack of publicly-stated conservative views they themselves would be attacked for hypocrisy. How could they oppose a nominee of the highest professional qualifications? They couldn't. Even though the christian right had no reason to think he agreed with them on their most important issues, they were forced, for political reasons, to support him because he was the living embodiment of their view that anyone nominated by the President should automatically be confirmed based upon professional qualifications alone.

Harriet Miers changed all of that. Her professional credentials sucked. That freed christian conservatives to attack her ideology. They didn't have to consider her credentials because she had none. Bush made an enormous error by nominating someone who could be attacked by his own party without them fearing an appearance of hypocrisy. If Bush had nominated a judge with a great background, christian conservatives would known that they could not attack her because they would've appeared to have a double standard. Here they had been saying all along that the ideology of judges should be ignored if their professional qualfications are great. Yet, they attacked Harriet Miers for being insufficiently conservative. Bush let that happen. By nominating Miers he opened his Presidency to attack from those who wanted to push it to the extreme right. His one and only failure was nominating someone of dubious credentials. That opend him up to political attack. He will not make that mistake again.

John Roberts had absolutely no openly-stated christian conservative views. Harriet Miers was no different. She had shied away from publicly stating her ideology in exactly the same way that John Roberts had. The only difference was that Roberts had a great resume while Harriet's resume sucked ass. Roberts skated through because a man with a near-perfect record of amibiguity could not be challenged by conservatives for being insufficiently conservative. No one knew what he was. Conservatives had already staked their political message on confirming people of proven credentials. Roberts's super-resume made his confirmation automatic. Miers's rejection was automatic for exactly the same reason. Her non-existent resume meant that arch-conservatives could attack her at will without fear of looking hypocritical. They never could've done that to Roberts.

Despite the fact that the Bush administration is under attack by the Fitzgerald investigation, it has not managed to unseat Karl Rove. You can bet your boots that Rove is still in his position of power and calculating the political costs of any Supreme Court nominee in exactly the way he did for both Roberts and Miers.

There is one thing that both Roberts and Miers have in common. They are strong defenders of Presidential power in the war on terrorism. That is what most matters to Bush. He will not allow that power to be compromised. He will appoint judges who will preserve his power. He still has more than 3 years left to go in his Presidency and he's facing major court battles over detainees in the war on terror. He will not give an inch on those cases, and he will appoint anyone and everyone who will preserve his Presidential power to fight terrorism. If an appointee happens to agree with the christian right, he won't mind, but it will be of secondary importance to him. He'll take it or leave it. As long as he gets a nominee who preserves his power, that's all he'll care about. If he can get that kind of person approved, he won't care if they're agreeable to the religious right or not.

Don't think for one second that the christian right is going to dictate George Bush's choice of the next Supreme Court nominee. He is facing ongoing court cases where terrorist detainees are challenging his authority. He will not stand for that under any circumstances. If that means appointing pro-abortion judges, he will do it as long that judge preserves his power, but if he can get his Presidential power by nominating an anti-abortion judge you can bet your boots he will do it. Pure power is absolutely the most important thing in the world to President Bush and every single one of you knows it.

Any Christian consevative who thinks he/she has somehow seized the upper hand in the Supreme Court war is really, REALLY delusional. Bush will fight to the very end to preserve his power, and if that leads to some sort of religious conflict over abortion or gay rights he will tell christian conservatives to stick it. He will ALWAYS go for power first and foremost.

Bank it.

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"We don't see things as they are. We see them as we are." -- Anais Nin