Musing on Miers

MUSING ON MIERS….I’m reading Jacob Hacker and Paul Pierson’s Off Center at the moment (more about that later), and one of the points they make is that because ultraconservatism isn’t actually very popular in the United States, ultraconservatives like Tom DeLay and Karl Rove have to constantly figure out new and clever ways to hide what they’re doing from the public (Hacker and Pierson explain several of their favored methods in the book). H&P don’t use Supreme Court nominations as examples, since the book was finished earlier this year, but George Bush’s two recent picks sure fit the mold, don’t they?

After all, what do John Roberts and Harriet Miers have in common? As near as I can tell, only one thing: they’re ciphers. Roberts’s judicial paper trail was only two years long and Miers’s is even shorter: she has no judicial paper trail at all. Zero.

So what’s the reaction? The folks over at NRO are pretty unhappy about Miers (“the GOP base is dispirited by this nomination,” says Jonathan Adler), as is the conservative site ConfirmThem (“My first reaction: Not thrilled.”) Stephen Bainbridge is “appalled.” Tom Goldstein at SCOTUSblog predicts that she’ll be rejected by the Senate, helped along by conservative ideologues who hope that “the President would then nominate, for example, Janice Rogers Brown.” Uber-neocon Bill Kristol says he’s disappointed in the Miers pick “because I expected President Bush to nominate someone with a visible and distinguished constitutionalist track record.”

I think they’re all missing the point. Yes, Miers is a Bush crony, and that’s surely part of the story, but the bigger point is that Bush and Rove are practical politicians who know perfectly well that the kind of candidate the activist base likes is wildly unpopular with the public, because the ultraconservative agenda itself is wildly unpopular with the public. A “distinguished constitutionalist track record” is the last thing Bush and Rove want. A cipher is the best chance they have to get a real conservative on the court, and they know it.

Will the ideologues figure that out soon enough to begin the task of digging up enough previously undiscovered conservative credentials in Miers’s resume to allow them to pretend they’re satisfied after all? Or will they continue throwing a hissy fit because they’re convinced their agenda is actually supported by the country at large and they want Bush to nominate a fellow ideologue to prove it? This could be a very interesting confirmation battle.