As Charles Krauthammer suggested, Harriet Miers opted out of the Supreme Court option by relying on the "executive privilege" dodge -- in other words, she didn't want to force President Bush to fight over releasing allegedly privileged documents concerning their relationship during his presidency. Non-privileged documents, however, gave conservatives more concern to worry -- apparently, some were a bit too middle of the road for their tastes. And, since Miers did not stand out as an elite pick (however one wants to define that), she had no cover -- "but, hey, Sen. Reid (D) (pro-life) likes her" apparently did not work too well.*
President Bush blamed the state of the nomination process. As is usual with his complaints in this department, this is largely hot air. The point of the nomination process is to judge candidates, including those deemed not qualified enough or too close to the President. Likewise, if picks are not satisfactory to one's own base (and you could not handle their complaints), you do not blame the process -- this sort of thing is not new, you know. The "we want ours now" thing is not somehow a sign that the nomination process is in shambles. It might suggest your administration is in a weakened state and/or you did not choose wisely enough. But, don't blame the process for that.
Politics is also about cover stories, of course -- saving face is not just some Chinese concept, but an important part of the ars politica. So, Bush's cover story is not really upsetting -- it's b.s., of course, but nothing special in that department. The concern is what's next -- will the next choice be worse for the Dems? After all, Miers was largely attacked because it was felt she was not conservative enough. But, watch out -- admittedly not totally to my liking, the Dems have played nice so far. Some libs are also waiting for their moment in the sun -- throw out a name like Judge Edith "let's have a Roe do-over" Jones (she's an activist, but the sort conservatives like), and a filibuster might be in the cards. Ditto reprobates from the overly conservative "enemy combatant" Fourth Circuit like Judge Luttig. Anyway, I think it will be a woman and/or Hispanic, but time will tell who.
One final thing -- one would guess that with two Bush picks, even if they are not just Scalia clones, the Court will shift to the Right to some degree. So it goes -- the courts are indirectly political institutions, the selections affected by who is in power. The Court basically reflects the public: libertarian in many ways, suspicious of federal power, and more conservative on criminal justice matters. One might add that they also are somewhat friendlier to mixing religion with matters of the state, if in a somewhat restrained way. Again, reflective. On that note, I have for some time been guardedly satisfied with the Court, even their federalist decisions sometimes logical. There is a middle ground there, really there is, and maybe it will be reached in the next few years. The lesser standard used to uphold federal rules relating to gender and fundamental rights (e.g., disability rules applicable to criminal procedure) suggests just that.
These people are not totally to my liking, of course. I wish for consistently liberal and/or libertarian voice as well as one younger than Bush senior ... someone who finds kicking innocent grandmothers out of government housing because unknown to them their grandchild smoke pot off site to be perfectly shocking. And, they can vote with the conservatives sometimes -- after all, Justice Douglas dissented when Maryland had to pay state employees a federal minimum wage. But, the public keeps on voting for Republicans, along with a centrist Democrat who picked two safe nominees who do not always thrill -- sometimes, Breyer is downright annoying.** So it goes.
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* One thing Al Franken's new book as well as his radio show told me was the story behind Gov. Casey (pro-life) not being allowed to speak at the 1992 Democratic Convention. I truly took on face value the claim that it was a move against someone who was pro-life, which would upset the Democratic base. Actually, Franken and others report that the true reason was that Casey did not support Clinton!
And, Franken is right that there are various pro-life Dems who have a front row center place ... just look at their Senate Minority Leader. Anyway, it is not like Republicans put pro-choice members of their party front and center at their Convention. And, why should they? Conventions are not really meant to be situations where members speak against party platforms, right? Still, Franken's explanation is a telling example of how misleading spin plagues politics these days.
** Consider his joining of the Hamdi plurality -- there were four votes for a broader right and his would have made five. Breyer's "active liberty" approach (to cite his new book) also leads him to support alleged overriding principles over what I think are the express terms of the constitutional words at stake. Thus, judges can decide facts, since it might lead to a more just end -- but, sorry, the Constitution generally gives that power to juries.
So, to a degree, Breyer is quite Clintonian. But, I am not a complete fan of that guy. As to Ginsburg, sometimes she is more liberal, sometimes not liberal enough. And, overall, she is not that expressive about it ... anyway, sometimes, I want someone more consistently libertarian. But, who asked me, right?