We Americans have notoriously short memories. The observation applies equally to liberals and conservatives alike. In the last several days a significant number of the latter have professed to being disturbed by President Bush’s nomination of Harriet Miers to the Supreme Court. They declare she lacks experience, is under-qualified, and is a virtual unknown. In my view, the president’s critics have forgotten the lessons that Robert Bork's confirmation hearings teach us.
Bork is a brilliant man whose active mind and engaging personality have secured him a place as one of the legal profession’s stars. (One would think that such people should be on the Supreme Court.) As it turned out, Bork’s professional reputation was his downfall; too much was known about him. Fearing that his keen mind could potentially move the court to the right, the media working with special interests groups made sure he did not make it on to the court. They are ready to do the same thing again, but to succeed they need information about a nominee’s position on the issues. Hence, the only way to get a conservative judge on the high court is to appoint someone about whom little is known, that is someone of a far lesser reputation. That will likely mean that at best the nominee is lacking in experience. At worst, (s)he is not up to the task.
Hence, in order to have a conservative court, the president risks making it a mediocre court. But what else can he do? His conservative critics insist he should have nominated a well-known, highly qualified conservative. The truth is that if Senate Democrats were to sense that such a Bush nominee was likely to secure confirmation, they would surely filibuster. There is not the slightest chance that Senate Republicans would vote for the so-called “nuclear option” in the wake of the media assault that the mere mention of such a vote would trigger. Contrary to what Bush’s conservative critics seem to think, it is not the president who is lacking in resolve, but rather the Republican Senate majority; and President Bush knows it. The Republican majority would wither under the pressure. So, what is the president to do? His best option is to nominate a “stealth” candidate, and that is what he has done.