A letter of renunciation, an acceptance made "reluctantly" in the interest of protecting executive privilege, and the most relentless opponents of George W. Bush's nominee for the Supreme Court won their demand: Harriet the Proletariat returns to the White House to serve as counsel, where they have told us she belongs.
The petition against Miers was more litany than thesis, effective not in dialectical potency but narrowness of purpose — the White House counsel had to go, and in lieu of a judicial record the attorney's writings, speeches and biography would be the rejones and banderillas thrust at and stuck in her. Miers, bristling, must finally have been persuaded that she was crippled and, paradoxically, had become the presidential liability her critics insisted she would be.
Left particularly unanswered by Miers' opponents were rebuttals to claims of her under-qualification. Not a single prominent detractor acknowledged President Bush's summer agreement with senators to seek an attorney. If a woman to lead the practice of law in an unpropitious place and time, carrying a professional resumé bedecked with honors and tenures, is unfit for the Supreme Court — where does one locate the failure? The standards of Texas? The lack of constitutional law as a prime avocation? Decade-old policy statements that may or may not reflect judicial philosophy? Not once was it articulated how any nominee without a single judgeship can be found acceptable unless their personal politics indicate otherwise — the very provision rightists are supposed to abhor.
For those who did not dismiss the nominee as incompetent the evaluation was between an OK justice and a better justice. Why did the president choose his counsel? We would have found out in the hearings, perhaps? — another reason to have waited.
Disappointment with Miers was sincere but it started out tendentious and the bid for the preferential became emotional, in the last days turning ugly. William F. Buckley's column on the subject was written last Friday and ended with a presupposition of the nominee's hearings before the Senate Judiciary Committee. Why the founder of National Review signified that he was content to wait and hear Harriet Miers herself speak, when six days later his magazine's current staff and contributors grabbed what was, inferably, notes for a speech and ran it up a flagpole is unclear; but one might suspect the divergence had something to do with longanimity that comes from longevity.
That sense of proportion is invaluable. For justices of a certain stripe looking to emigrate from appeals and district courts, the Senate may remain an impassable frontier, barring the way to black robes with a sign that reads "No Originalist Need Apply." In chorus would the right rejoice at the induction of someone as reverential to the spirit of 1787 as Antonin Scalia and Clarence Thomas. What the president's critical supporters expect of him may be, however, a practical and political impossibility.
Neither the president's motivation nor his reading of Capitol Hill were closely examined over the last few weeks. The White House choice this time, against previous choices, seemed more canny than faulty. The finest candidate, ensnared by Senate politics, will do federal jurisprudence and executive appointment power as much good as did Miguel Estrada. Still, the president has lost neither his power nor his party's congressional majority, and it appears that those quick to anger are eager to be pleased. President Bush could move the Supreme Court rightward by Christmas, capital enough to fill the seat of the first leftist justice to abdicate. One only wonders if it all might have been done without boxing the ears of poor Harriet Miers.