Jumping To Conclusions

So, it's official: Harriet Miers has withdrawn her nomination to the Supreme Court. I take full responsibility for this event, or at least the timing thereof. Last night, I prepared, in a hoped-for return from my blogging hiatus, a long post on the Miers nomination. I was going to clean it up and post it this morning. In order to ensure that said post would be pointless, Miers withdrew.

A few quick observations:

• Charles Krauthammer called it: the face-saving gesture was executive privilege. Although I question how much face it could possibly save, at this point.

• Although I am happy that Miers has withdrawn, I do feel sorry for her, to an extent. She's hardly an innocent bystander in this, to be sure -- but it's got to be difficult to say no when your close friend, the president, approaches you with such an offer. In two years, I doubt anyone outside law/news junkies will remember her, but this has to damage her career. She went from being a politically connected, successful, accomplished corporate litigator, to an unqualified hack who can't write, in the span of a month.

  If she were already a federal judge, she could return to that position, secure in life tenure. If she were an academic, she could turn back to academia. If she had been forced to withdraw by a nanny problem, she could have returned to her career and laughed it off. If she had been Borked, she could turn to the conservative book/lecture circuit for support. But what does someone in her position do now?
  

• I wonder how much of a role, if any, blogs played in all this. I also wonder if there was any one factor, such as yesterday's revelation of Miers speech suggesting she may not want to ban abortion at all, or if it was just the constant drumbeat of opposition which Bush and his minions couldn't quell.

• I feel sorry for Sandra Day O'Connor, whose conditional resignation is now likely to drag on for more months (thanks to Chief Justice Rehnquist's inconsiderate timing of his death).

• I see that Democrats and the activist left are using this as a rhetorical weapon against the conservative movement. I doubt that will have any traction, but they couldn't resist. This is, of course, merely setting themselves up to oppose Miers' replacement. They've got the script all worked out: "Bush nominated a moderate to replace O'Connor, but those ultra-right wing ideologues couldn't tolerate that, so we know that this new nominee fill-in-the-blank must be so radical, so we oppose him. Or her. Whoever."
  

As I mentioned, the terms of Sandra Day O'Connor's conditional resignation have her remaining on the court until her replacement is confirmed. Since (a) social conservatives don't really want her on the court, (b) she doesn't want to be on the court, (c) a vacancy would also be bad for conservatives, (d) nobody wants a nomination fight in an election year, and (e) the president probably wants to put this embarrassment behind him as quickly as possible, I assume Bush will hurry up and announce a new nominee.

That means he needs to pick someone who has already been vetted thoroughly... and that means it has to be someone who was already on the short list.

A stealth nominee simply would not work at this point; that would be an absolute disaster. Bush would lose what little support he still has with his base if he nominated someone else whose views were murky and whose paper trail was minimal. At this point, it should be clear to even his most loyal supporters that "Trust me" just ain't gonna cut it.

Not only does he need someone whose views are known and whose background has no surprises, but he needs someone whose credentials are impeccable. That would seemingly call for someone like Judge Michael McConnell... except that McConnell is not -- to use the common Washington parlance -- a womanorminority. Everything else about him is perfect from Bush's point of view.

Attorney General Gonzales is a womanorminority, but would raise the cronyism issue again (although less appropriately), plus he's not that conservative, plus liberals blame him in part for torture.

For obvious reasons, many of the names on the short list -- in addition to McConell, you've got Luttig, Wilkinson, Alito -- or names that should be on the short list -- Kozinski, Easterbrook, Posner, Nieporent -- are not womanorminorities.

Janice Rogers Brown -- who's actually a womanANDminority -- would certainly be an interesting choice -- I'd look forward to those confirmation hearings -- but (a) I'm not sure she's socially conservative enough for social conservatives (in other words, we don't know her views on abortion), and (b) she's the candidate probably most at risk of being Borked by the left. Someone who thinks the New Deal was a socialist mistake may be my hero, but her views will be derisively caricatured by Democrats. It would definitely distract from any Fitzpatrick indictments, but I'm not sure Bush wants to fight a war on three or four fronts at once.

Other than that, there's Garza, Clement, Jones, Owen... I guess we'll have to wait and see. I just hope we wind up with someone whose conservative judicial intellectual credentials are well-established. This is Bush's last best chance for a judicial legacy. (Yes, Stevens could still retire, but that fight would be very tough, and there's no guarantee Republicans would still control Congress when it happened.)

I am a long-time subscriber to the fabulous "Word A Day" email newsletter from Wordsmith.org.

Last Friday's AWAD finally revealed a word to describe my approach to life, my new favorite word:

velleity (vuh-LEE-i-tee) noun

Volition at its faintest.

[From Latin velle (to wish), ultimately from Indo-European root wel- (to wish, will) which is also the ancestor of well, will, wealth, wallop, gallop, voluptuous, and voluntary.]

Today's word in Visual Thesaurus.

Finally, a word to describe a few of those things we can't wait to do: filling out tax forms, for example.

Velleity is volition at its weakest. It's a mere wish or inclination, without any accompanying effort. But who could tell just by looking at the word?

So next time you're late in filing your tax return and the tax department sends a reminder, just send them a polite letter vouching for your velleity. The taxman will think the check (or cheque, as our Canadian grammar guru Carolanne Reynolds would write) is coming soon and you've been completely forthright.

So, it's official: the new nominee is Third Circuit Judge Sam Alito.

Shorter version of President Bush's introduction of Alito this morning: "Hey, everyone: he's not Harriet Miers! This one's qualified!"

Speaking of the Miers-Alito contrast, does this mean that we've finally recovered from the Bork fiasco? In 1987, Reagan's nominee Robert Bork was, well, Borked. Ted Kennedy took everything Bork ever wrote in his extensive career, twisted it beyond recognition, and turned an admittedly conservative judge into a monster. This led to an almost two-decade long period in which the strategy of Republican presidents was to give us nominees who were easily confirmable because they hadn't written much, hadn't done much controversial, had no history to be twisted. Miers was the apotheosis of this Stealth Nominee strategy: a nominee with no written record because she had no record of any sort.

Alito, while not a rigid ideologue -- though he's sure to be painted as one by the leftist advocacy groups such as NARAL, NOW, PfAW, and AfJ which use judicial fights as fundraising tools -- is in other respects the polar opposite of Miers. Where Miers spent her whole legal career in private practice, Alito was in government, working first in the Office of the Solicitor General, then as a federal prosecutor, and finally as a federal judge. Where Miers never wrote anything beyond some bland pablum for the bar association newsletter, Alito wrote hundreds of opinions. Where Miers did almost no work in federal courts, Alito argued at the Supreme Court. Where Miers was virtually unknown outside of Dallas legal circles, Alito was on most short lists for the Court.

While Alito is certain to be demagogued, he's also very likely to be approved, barring the revelation of some personal skeleton in his closet. So have we finally turned the corner on the notion that conservative nominees must be unknowns in order to be confirmed? Both Roberts and Alito have long paper trails -- Alito's being particularly significant, since it represents a judicial background. (Nobody will be able to claim they need more paperwork on him before making a decision.) So hopefully what we have now is a new paradigm, in which conservative presidents no longer feel as if they have to hide their nominees' backgrounds in order to be confirmed.

(Of course, this confirmation fight will still be muted by the fact that Alito is filling a fellow conservative's seat on the Court – even if the left wing groups are trying to reinvent Sandra Day O'Connor as a liberal for rhetorical purposes. Wait until Stevens steps down. Then the real battle begins.)