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October 7, 2005



PAUL GIGOT: Welcome to THE JOURNAL EDITORIAL REPORT. They may eventually come around, but this week people the President usually can count on were his toughest critics. They called his choice of Harriet Miers for the Supreme Court "cronyism." They said she was unqualified. They said the president had chosen to run from a fight and betrayed his promise to nominate judges in the mold of Justice Scalia. Some of his supporters said, "Don't worry, she'll be fine." Those kinds of differences are reflected in our panel: Dan Henninger, columnist and deputy editor of the editorial board; Melanie Kirkpatrick, associate editor of the editorial page; Jason Riley, a senior writer for the editorial pages; and James Taranto, editor of

Dan, I tell you, calling around this week, I haven't seen conservatives as angry since the first President Bush raised taxes in 1990. What's got them so upset about this nomination? And, I guess, do you agree with them?

DAN HENNINGER: Yes, I do agree with them. I think what has them upset is that the Supreme Court was probably the one thing out there in public policy land that conservatives thought they didn't have to worry about, that it was settled. You could worry about the president on spending, you could worry about foreign policy, which is complex. But they've been spending 25 years creating a bench, a set of strong candidates to go onto the Supreme Court. And it's like the starting line-up of the Yankees. The pitcher on day one of the World Series is a Little Leaguer. And people are completely shocked. This is the last thing anyone in the conservative community expected to happen.

PAUL GIGOT: You could set up a line-up of 25 people right off the top of your head who have been waiting in the wings, who have been sitting on Appellate courts, have toiled in the vineyards of Conservative jurisprudence. And she was not on that list.

JASON RILEY: But it goes even further than that. I think the betrayal that Dan is speaking to her, the perceived betrayal on the part of Bush. For years, the conservatives have made fun, or poked criticism at liberals for promoting diversity ahead of merit and accomplishment. So what does the president do? He gives us a woman, and toots the fact that she's the first woman this, and the first woman that, which is all fine and well and certainly speaks to her character, but tells us nothing about her jurisprudence, what she thinks about the Commerce Clause, or the Establishment Clause, or the Right to Privacy. "Trust me" isn't good enough.

PAUL GIGOT: Wait a minute. Diversity is not something that we have to think about for the Supreme Court, Jason?

PAUL GIGOT: He wanted diversity to be something that was important. It's important to him and he said, and that's why I think he ruled out a lot of these white men, and he said, "Look, I'm going to pick a woman, or I'm going to pick a minority." And she was the one woman who was the most easily confirmable in his view.

JAMES TARANTO: Well, that's part of the reason for the feeling of betrayal, the idea that she is the most easily confirmable. There is a sense on the right that President Bush ducked a fight. And it's a fight that is important for the country to have, because now is the time they can win this fight, with 55 senators. The right feels, and I think correctly, that this is a winning issue for them politically. What happens if in 2006 the Republicans lose a few Senate seats? It suddenly becomes much harder to confirm a solid nominee, and then President Bush may be forced to, if John Paul Stevens retires, pick up somebody soft, somebody acceptable to the Democrats or the few liberal Republicans left.

PAUL GIGOT: Yeah, Melanie?

MELANIE KIRKPATRICK: Let's talk about the nominees. The debate among the right is mostly about who she isn't, not about who she is. And everybody points to the long list of candidates, many women included, who have a defined judicial philosophy which has been refined over the years and is well-known. But Harriet Miers herself is a very impressive candidate, and for one thing she's been on the committee at the White House for five years who have been selecting judges for President Bush's approval. And President Bush has appointed 100 or more to the federal bench, including 23 Appeals Court judges and one Supreme Court appointment. And they're pretty good. Conservatives don't have a lot of complaints about them. This give me, at least, some reassurance that Bush knows what he's doing, number one, and number two, that she shares that same judicial philosophy.

JASON RILEY: Mel is right. She could turn out to be an excellent justice, and we could find out from the answers to some of the questions we have at the confirmation hearings. We don't know. But the precedent is a little disconcerting, that one of the primary qualifications now for serving on the Supreme Court is having no paper trail. And to satisfy, to go back and answer your diversity question, even taking the president's criteria for a woman or a minority into consideration, there were women and minorities better qualified than this person to nominate. So he could have satisfied that requirement.

PAUL GIGOT: I thought one of the most interesting moments of the week was when the president had his press conference, came out and said, you know, "I wanted somebody on the court who is going to be the same 20 years from now as she is today, and I had the most confidence in this woman." And I think you can't underestimate here the degree to which the David Souter nomination is an embarrassment for the Bush family. Because Souter moved so far away from what we thought he was when he was nominated. I think President Bush didn't want to make that mistake again, and he's saying, "Look, I'm not going to make that mistake again."

JAMES TARANTO: Yeah, but 20 years ago Harriet Miers was a Democrat.

PAUL GIGOT: [LAUGHS] But isn't this true, Dan, that this is the closest thing to the president nominating himself to the court.

DAN HENNINGER: You know, and even on this point that the conservative community is disagreeing with him. There is actually a kind of innocence to the complaint of the conservative community. They felt that they had built up a body of intellectual thinking around the Supreme Court over this 20-year period, and that they would go out in public in one of these confirmation processes with all of the fight and so forth, and express it to the American people. And they go so far as to say that if you nominated a genuine conservative jurist to the court, he might, in fact, following conservative principles, come to conclusions that are politically unpalatable to the conservative community. What Bush is proposing is a philosophy that amounts to, "Just win, baby." In other words, a totally results-oriented jurisprudence, which is what conservatives criticized liberals of having done for the last 20 years.

PAUL GIGOT: Now Melanie, there are -- to just be fair here -- there are an awful lot of conservatives who have come out in favor of her, prominent people: James Dobson, for example, the radio broadcaster, conservative radio broadcaster, the National Right to Life Committee, the anti-abortion group, Richard Land of the Southern Baptists. So there is a debate here about the right, and a lot of, one of the White House strategy points here has been to say, "Look, we want people -- she's an evangelical Christian and you know what, her personal views on abortion are anti-abortion -- hint hint, she might go the correct way on Roe." What do you think of that strategy?

MELANIE KIRKPATRICK: I think that's an insulting strategy, and it goes counter to everything that the conservative movement has been about when it comes to the courts over the past 25 years. As Dan was saying, the idea is to look not at political results, but for somebody who will follow the rule of law.

JAMES TARANTO: Well not only that, but on the religion point specifically, when John Roberts was up we heard, rightly so, that it was outrageous to question him about his Catholic faith. Now we hear from some of the same people who were saying that, gee, she's an evangelical, that's terrific. Why should we care what religion a Supreme Court justice is?

MELANIE KIRKPATRICK: It's also a strategy that won't work, because remember when Kennedy was nominated, they got people to come out and say, well, he's a Catholic -- hint hint, he's pro-life. And now, look at how he's voted.

PAUL GIGOT: And not only that, in that Kennedy episode, he had a very -- I remember an important exchange with Jesse Helms, who had questioned his conservative credentials. And he went to Senator Helms, then nominee -- or he wasn't yet nominated, but potential nominee Anthony Kennedy, and said, "Look, I'm a Catholic and I'm pro-life." And he got Helms' blessing, and of course on the court he's been entirely different. So that's not a precedent you could really count on. What's important is not what your views are on abortion, they're what your views are on the judiciary.

Okay, let's talk about the politics of this. Do you think, James, that she is ultimately going to be confirmed?

JAMES TARANTO: I think there's a pretty good chance that she won't be. I think it's quite possible that you'll have enough Republicans peel off. There seems to be a real momentum. I wouldn't have said this before I spent an evening with 1,000 conservatives at the National Review dinner, and heard not a single kind word about this nomination except from people on the White House staff. There is a real anger out there, and we may see some Republicans peel off, and then we may see some Democrats decide they want to deal the president a blow.

PAUL GIGOT: Boy, it's awfully difficult for a sitting Republican senator to disagree with the president on something like this.

JASON RILEY?: And you're going to need a good number of them to do that. I guess the number is 12 you would need to peel off.

PAUL GIGOT: Assuming all the Democrats vote, or most of them vote ...

JASON RILEY?: Right. I'm not sure how likely that is. And there are probably enough smart Democrats out there to know that if Miers goes down, someone who they would consider a lot worse would probably replace her.

MELANIE KIRKPATRICK: And I would say that the 14 Democrats and Republicans who signed the filibuster deal a couple of months ago, this week said that they saw nothing in Harriet Miers background that would cause them to oppose her.

PAUL GIGOT: Well they love it, because maybe now they won't have to filibuster. They don't expect they'll have to filibuster.

DAN HENNINGER: [OVERLAPPING] They won't upset the deal.

PAUL GIGOT: Yeah, that lets them right off the hook. How do you think the Democrats are going to handle this, Dan?

DAN HENNINGER: Well, I think if they were smart they would hold the door open and whisk her onto the court. Look at the destruction it's causing to the Republican party. The cohesion is broken down. It's been very disruptive, and I would not be surprised if some of these Republican senators like Senator Brownback, Senator Allen, decide now's the time to go independent from the president because they're thinking of running for the presidency themselves. At some point they have to do it. This is an opportunity. It could happen now.


JASON RILEY: I just think one of the big ironies here is that President Bush probably thought he was not going to get a fight, and did this to avoid a fight with his political opponents, and instead he's going to get a fight from his own political base.

PAUL GIGOT: Well the danger is, instead of getting a fight on principle and ideology and judicial philosophy, which is at least about something substantive, you could end up with a fight about credentials and cronyism, which is not the ground a president wants to be fighting on.

Very, very quickly, do you think she'll be confirmed? Just yes or no.

JAMES TARANTO: I'll say no, go out on a limb.


PAUL GIGOT: You do? Dan.

DAN HENNINGER: Long shot. President withdraws her, proposes someone else, galvanizes the party.

PAUL GIGOT: Wow. Jason?

JASON RILEY: I think she'll be confirmed.

PAUL GIGOT: I think she'll be confirmed, but if there's any particular new news that comes out about ethics or something, she has no safety net of support within her own party. So all right, thank you all very much.

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