Judicial Nominations & Republican Politics

I would like to respond to a comment Dave Lane (glad we have intelligent liberal contributions on the blog - thanks!) made on a previous post:

"I will say this -- the following GOP talking points are now dead in the water (killed by the hand that fed them):
1. Every nominee deserves an up or down vote.
2. There should not be a litmus test on abortion for judges.
3. Bush was elected President, so he gets to pick who he wants for the Court.
4. Nominees should not be Borked (I suppose it's somewhat poetic that Miers was Borked by Bork). "

The Miers nomination raises reasonable doubts about the sincerity of conservatives who suggested that the presidential nominating power was sacrosanct. Many conservatives made compelling arguments that "advice and consent" could not mean that a president had the DUTY to prequalify nominees with the Senate. In the case of Miers, the President made a choice and the reaction was outrage - How dare he! In defense of the abovementioned conservatives, I would distinguish between saying that the Constitution requires senatorial participation in the selection of nominees (a novel interpretation of the Constitution opportunistically advanced recently by some Democrats) and saying that a president's choices can be criticized (a freedom fully exercised by Republican citizens in recent weeks). Republican senators did not initiate or even participate in the rebellion against Miers and their subtle telegraphing of a difficult confirmation seemed to underscore the generally accepted notion of senatorial veto power to a presidential power of choice.

"Every nominee deserves an up or down vote" refers not to public opposition, which derailed this nominee, but to (ab)use of Senate rules to prevent a vote coming to the Senate floor, notably the filibuster. The objection is not to free speech but to minority thwarting of the majority will. The Miers withdrawal was a submission to popular will.

Miers was not generally treated abusively. She was a very weak nominee, offering ample material for substantive objections, and the attacks hardly had the chance to get personal in the short time involved. Judge Bork, on the other hand, was subjected to the full fury of modern media politics.

You have a point on abortion litmus tests.

I believe the Miers nomination was, as Geoff Shipsides reported in a post before Miers' nomination, a sacrifice nomination. The abortion element was crucial to setting up the next nominee. Here's how:

It has by now been established that Miers opposes abortion (and Karl Rove made sure that we'd all find out) and it seems reasonable to assume that she would have been a vote to overturn Roe as well. The Democrats hardly raised a peep against Miers but instead held their fire as they saw Republicans seeming to do their work. BUT the Miers prologue simply strengthens the importance of QUALIFICATIONS in the public mind; opposition to abortion hardly got a chance to be brought up as a problem.

So, we are left with: 1) qualifications are the key to evaluating a nominee (another Republican talking point), and 2) opposition to abortion is not a problem.

I think the next nominee will be: Edith Jones, Emilio Garza, or Michael McConnell. And any of them will now have a much easier time getting confirmed after Miers. There will be a tough fight but the ground is well prepared for the engagement.