Incipiency

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(The following article is not presented as a fait accompli, nor as an attempt to provoke outrage among Conservatives, but as an analysis of the forces at work on each side of the decision, as well as the statements made by key participants.)

Harriet Miers will be confirmed as an Associate Justice of the United States Supreme Court. This is the conclusion I have reached, after reviewing the salient conditions of the relevant factors, which is to say, there is going to be a great deal of noise and gnashing of high-priced dental work over the next few weeks.

The reason this will happen can best be understood by examining the history of judicial nominations in recent years, as well as SCOTUS nominations, and of course by separating the people with real influence in the decision, from people who are simply working on the outside.

For starters, the process can be divided into five stages: The nomination and initial response; the discovery prior to the hearings and the coalescing of camps; the initial hearing questions and public statements by Judiciary Committee members; public opinion and communication to the Senators; and the Senate Committee and full Senate votes. It’s very important to know where we are on the road, to understand what effective actions may be taken.

According to a timeline of Bush judicial nominations as prepared by Confirm Them, Bush nominees average 39 days from nomination to hearing, with 5 days of hearings, 10 days from hearings to markup, and 13 days from markup to confirmation, for a process time averaging 72 days. Nominated October 3rd , Harriet Miers should begin hearings in the Senate November 7th, or 37 days after her nomination, right in line with the average for Bush nominees. It remains to be seen, of course, whether the rest of the process follows that course, but for now, despite all the noise, the Miers nomination is proceeding as others before have done.

The next point to consider is whether President Bush might withdraw Mier’s nomination. This is extremely unlikely. President Bush, for good or ill, is extremely firm on his judicial picks. Despite heavy antagonism from Democrats on such picks as Priscilla Owen, William Pryor, and Janice Rogers Brown, President Bush never retracted a single one of them, but pressed until they were confirmed. Ideologues will find it galling no doubt to consider that Bush places Miers in the same company as the “known” Conservative judges, but Bush’s statements make it plain that he does. Also, Republican friction in the past couple years concerning John Ashcroft, Donald Rumsfeld, and Vice President Cheney demonstrates that President Bush is not one to give in to pressure from his own party, much less from unelected criticism, and especially when it is emotional wailing, unsupported by the facts. While it may amuse Ideologues to insult Miers with the “crony” tag, the most likely effect, by far, that this will have on the President is to solidify his support for her. In addition, the President understands far better than most that a withdrawal would do very serious damage to future nominations and his influence in the Senate, who already have far too high an opinion of themselves. As a consequence, not only will President Bush not withdraw Harriet Miers’ nomination, but if she herself suggested it, President Bush would talk her out of it. Observers should expect Harriet Miers to march into the Senate hearings as scheduled.

One strategic mistake the Anti-Miers contingent has made, is that they have applied their fire on the targets least likely to be affected by the noise. President Bush is no more likely to withdraw Miers than he was the day he nominated her. And the public in general has not joined the revolt against her. After all the rumors and gossip against Miers, more Americans approve of Miers than disapprove of her. This is important, because if only 26% of the public disapproves of Miers, there is not likely to be any sort of public outcry to their Senators. And frankly, it’s pretty much too late for the Anti-Miers crowd to start over on that project. A shrewder move would have been to key on the leading Republican Senators on the Judiciary Committee, pressing not for Miers’ removal but for specific questions to be asked and pressed. This is still possible, but the Senate is wary of appearing to be pliable by pressure from a clear minority.

Almost two-thirds of people queried say they expect Miers to be confirmed, and of those with a strong opinion, more Americans support Miers than oppose her. That makes opposing Miers the unpopular thing to do in the Senate, which is not the road Senators historically take. As for the so-called “centrists” in the Senate, they are not only not unhappy with Miers, but have already indicated a filibuster is “extremely unlikely”, and they are leaning towards confirmation. As a result, the actual information known about Miers has not significantly increased, due to an absurd focus on rumors and guesswork by the Anti-Miers forces, instead of seeking a consensus on what should be asked and pursued. The ideologues have painted themselves as extremists, so that even Senators who approve of their position on Miers will be wary of publicly standing with them.

So here’s the trip so far: Bush nominated Miers on October 3rd, and the immediate response was in two colors – wait and see from most Senators and the public, but a strong emotional rejection from certain individuals. The emotion could have ignited public opinion against Miers, but the methods chosen to express opposition to Miers chose unsavory courses, such as selective quotes from her writing, out-of-context attribution of opinions, and a large number of personal insults, using such perjorative terms as “crony”, “battiness”, or a “disaster”, collectively showing a dismal lack of both civility and objectivity, and in some cases deliberately spreading lies about the woman, which were quoted by like-minded sites extensively until other blogs caught the lies and called down the cavilists pressing them. Bloggers supporting Miers are told they are “kool-aid” drinkers or are supporting a “crook”, they are called “Bushbots”, and even well-respected commentors are denounced as “shill[s] for the Administration”. The President himself is sullied with rumors and insults by bloggers unhappy with his choice. George Will sniffs that President Bush “has neither the inclination nor the ability to make sophisticated judgments”, that he has “forfeited his right” as President. Apparently Will would have you believe that the endless sophistry of John “Subtlety” Kerry was, in retrospect, what Conservatives really want.

Annoying, this piling-on of hate by the ideologues, but it is very poor strategy as well. If nothing else, the average American tends to favor someone perceived as an underdog or an innocent victim, and all this vitriol is making people ask the reasonable question, ‘why not just let the lady have her hearings?’ It seems to me that not only are the ideologues embarrassing themselves with such comments, they are driving the undecideds to the pro-Miers side. Also, as Strata-Sphere observed succinctly, “the anti-Miers crowd are losing other conservative factions because they called for a civil war with nothing but scary fairytales to back up their claims.”

So, it’s pretty clear that Miers should be expected to appear at her Senate hearings. This the next battleground the ideologues are already preparing, to tear her down in front of the cameras. If it were so, I would actually applaud that. The whole idea as we practice nominations to the High Court, is that questions are asked at the hearings; ambushing the nominee on the way to the court is simply unacceptable. The ideologues, however, have reason to fear that their position weakens if Miers is allowed the review all nominees are supposed to receive. It comes from knowledge of how the Senate acts, and from early statements by certain key Senators. Arlen Specter is the Chair of the Judiciary Committee, and he’s pretty pro-Miers. Senate Majority Leader Bill Frist says of Miers; "She has demonstrated her leadership, her character, her integrity". Frankly, while some Senators have asked questions and stated they would like more information, the mood on the Hill, even among conservative Senators, is generally pro-Miers. Thus, the ideologues are fighting against the tide once the hearings begin.

Charles Pickering is not a Senator, but he is accepted as a “known” Conservative judge, and he also approves of Miers. In an interview with John Gibson of Fox News, Pickering said:

“She has a very impressive resume. And one of the strengths that I think she has is that she has real-world experience. I think it's unfortunate that we think someone has to come from the bench or someone has to come from academia to sit on the Supreme Court. During the history of our nation, half of the judges that served on the Supreme Court did not have previous judicial experience, so this is not a new phenomenon, this is not a new situation. And the fact that she has had real-world experience, she was an experienced litigator. She served in local government, state government, and federal government. I think that's to her advantage. I think that's a perspective that the Supreme Court by and large misses."

In the end, it comes down to momentum. The ideologues have created a noisy rally against Miers, but not where it counts, in the Senate or in nationwide opinion. For all the noise, the opinion of the majority of Ideological blogs will have no more bearing on the confirmation decision, than Michael Moore. That is, there is every reason to believe Miers will remain the nominee when her hearings begin, and in the absence of significant evidence indicating she is unfit (sorry, rumors won’t help the Anti-Miers movement in the Senate), she will be recommended by the Judiciary Committee and confirmed by the Senate. After all, in 1993 Republicans did have significant reason to believe Ruth Bader Ginsburg would push the Supreme Court in a wrong and dangerous direction, yet all but 3 of them voted to confirm her. The plain fact from history is, that unless Miers completely implodes at her hearings, she will be confirmed and take her place on the Supreme Court of the United States. The wisest strategy, I contend, would therefore be (whatever your opinion of the woman) to suggest crucial questions to your Senator to ask at the hearings, and to let her answer as she will. At this point, the decision belongs to Harriet Miers, and essentially no one else.