As if Republicans were not already having a bad enough year, the Harriet Miers nomination has sown seeds of dissension in their ranks, pitting conservatives against the president and congressional leaders.
There is no good end to this story for Republicans. Either Miers will be confirmed to the Supreme Court with some conservative votes against her and a general feeling of distaste, or conservative opposition will cause Miers to withdraw or be defeated, further weakening the president.
While confirmation is the most likely scenario, there are a few key signs to watch for that would show the tide turning against Miers.
The White House was clearly unprepared for the blistering opposition on the right to Miers. The president is down, and for conservatives the nomination of Miers highlighted his weakness. Picking a close associate with no background in constitutional law may have seemed to be the best way to get Democratic support, but it deeply disappointed conservatives, who see the replacement of retiring Justice Sandra Day O’Connor replacement as the key to changing the makeup of the court. Add to this the charge of cronyism and it seems that a weakened Bush had retreated even further into the bubble of his inner sanctum.
These developments make it certain that there will be some conservative votes against Miers. To understand how extraordinary that is, one has to go back 50 years to find the last Republican senator who opposed a president of his own party from the right on a Supreme Court nominee. Then, two Western Republicans opposed Eisenhower nominee John Harlan on the grounds that he had belonged to an organization favoring one-world government. Harlan was easily confirmed.
Despite all the problems Miers faces, the deference given to a president, especially by members of his own party, is strong. And time may be on Miers’s side. Initial reaction has been intense but may weaken. The hearings are at least two weeks away, and it would be considered bad form to declare opposition before she can answer her critics.
The most likely opponent of Miers is Sen. Sam Brownback (R-Kan.), a social conservative who might have opposed the nomination under normal circumstances. But add to his inclinations the fact that he will be running for president in 2008 and appealing to the conservative base. Brownback also sits on the Judiciary Committee, so he will get to vote on Miers in advance of the full Senate.
Also on the committee is Sen. Tom Coburn (R-Okla.), who is a conservative but is no sure vote for the leadership on any issue. In theory Brownback and Coburn could defeat Miers in committee, if all Democrats opposed her. But there is a good chance of some Democratic support, or Republicans could work out a deal to report Miers to the floor with a negative recommendation (as they did for Judge Robert Bork), and she would likely win a floor vote.
So what are the warning signs to look for that the Miers nomination is in trouble? First, if Republican senators declare opposition to Miers in advance of the hearings. Second, key conservative Judiciary Committee members have not indicated a preference, Sens. Jon Kyl (R-Ariz.) and Jeff Sessions (R-Ala.) in particular. If they were to join Brownback and Coburn to oppose her in committee, Miers is doomed.
John C. Fortier is a research fellow at the American Enterprise Institute.
