October 28, 2005
The New York Times
Why the Right Was WrongBy HUGH HEWITT
OVER the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush's nominees deserved an up-or-down decision on the floor of the Senate. Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.
The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.
Not all critics of Ms. Miers from the right used these tactics, and those who did not will be able to continue on with the project of restoring sanity to the process that went haywire with Judge Bork's rejection in 1987. Conservatives are also fortunate that no Republican senator called for Ms. Miers's withdrawal.
But the Democrats' hand has been strengthened. Voting for or against Ms. Miers would have forced Senate Democrats to articulate a coherent standard for future nominees. Now, the Democrats have free rein.
The next nominee - even one who is a superb scholar and sitting judge who recently underwent Senate confirmation like Michael McConnell of the United States Court of Appeals for the 10th Circuit, or a long-serving superstar like Michael Luttig of the Fourth Circuit - will face an instant and savage assault. After all, it "worked" with Ms. Miers. A claim of "special circumstances" justifying a filibuster will also be forthcoming. And will other nominees simply pass on the opportunity to walk out in the middle of a crossfire? A White House counsel with distinguished credentials was compared to Caligula's horse and Barney the dog on National Review's Web site. George Will denounced as "crude" those evangelicals who thought Ms. Miers's faith was a good indication of character in a nominee and a hopeful sign on issues involving the unborn. She was labeled a crony before lunch on the day of her nomination by scores of commentators. Attacks on her competence within the White House followed immediately. She never had a chance, really.
The Miers precedent cements an extraconstitutional new standard for nominees. Had the framers intended only judges for the court, they would have said so. No doubt some Miers critics will protest a willingness to support nominees who have never sat on the bench, but no president is going to send one forward after this debacle. The center of the Miers opposition was National Review's blog, The Corner, and the blog ConfirmThem.com, both with sharp-tongued, witty and relentless writers. They unleashed every argument they could find, and the pack that followed them could not be stopped. Even if a senator had a mind to urge hearings and a vote, he had to feel that it would call down on him the verbal wrath of the anti-Miers zealots.
It will be the lasting glory or the lasting shame of The Corner and others involved in driving Ms. Miers from the field, depending on what happens, and not just with the next nominee and his or her votes on the court, but all the nominees that follow, and all the Senate campaigns that will be affected, as well as the presidential race in 2008.
This triumph of the conservative punditocracy will have lasting consequences, and I hope my fears are misplaced. The first returns will come in the decision on parental notification statutes that will be argued before the Supreme Court in late November. Absent a miracle of Senate efficiency, Justice Sandra Day O'Connor will cast one of her last votes on the most important abortion-rights case in a few years. And then the accounting will begin in earnest.
Hugh Hewitt, the writer of HughHewitt.com, is a professor at Chapman University Law School.