In Bush’s five years as president he hasn’t received any serious opposition from his own party. Sure, there’s been occasional grumbling even from his base, but his nomination of Harriet Miers marks the first time that conservative criticism has been this passionate and sustained. But why is the Right so opposed to her? Here are some possible explanations:
(1) The Right is desperate to appoint a justice who is clearly committed to overturning Roe v. Wade, and there’s nothing in Miers’ record to suggest that she fits the bill.
The problem with this explanation is that the Right was thoroughly unopposed to John Roberts, whose past is equally opaque. If the Right is so desperate for an unequivocally pro-life justice, where was the opposition to Roberts?
(2) Miers is not one of America’s “leading legal lights”. She may be a fine lawyer but she has no credentials as a legal scholar.
According to this explanation, the Right’s main priority is to appoint a brilliant legal mind, and, by most accounts, Miers fails this test. If this were true, it would explain their support of Roberts and their opposition to Miers. In my less cynical moments I’m tempted by this explanation, but this can’t be the full story. Surely what the Right most wants is a very conservative judge regardless of his or her legal competence. Indeed, the Right loves Clarence Thomas, who nobody would describe as a brilliant legal mind, precisely because they like how he votes.
(3) Opposition to Miers is really opposition to Bush.
Bush keeps asking conservatives to “trust” him. Until now, he has had their unflinching trust. But perhaps recent scandals and disasters are shaking the Right’s faith in Bush. If this is true, it marks a major turning point in his presidency. But is it true? I haven’t seen any evidence aside from the controversy over Miers to suggest that it is. So I’m withholding judgment until I see conservative opposition to Bush elsewhere.
(4) The Right dislikes both Miers and Roberts, but they couldn’t non-hypocritically oppose Roberts.
The idea here is that the Right desperately wants someone with an established conservative record, but they cannot oppose a nominee solely on the grounds that he lacks this record. Why not? Well, the Right is always talking about having no political litmus tests on nominees, and if they oppose a nominee for not having a conservative track record, this would be employing a political litmus test. So, they must find other grounds for rejecting a nominee, such as a lack of legal brilliance. They couldn’t play this card with Roberts, but they could with Miers. So, on this explanation, the Right cares not a whit about legal brilliance (note again Clarence Thomas) – they care only about conservative justices, but their own rhetoric and talking points prevent them from opposing a judge on the grounds that he isn’t conservative enough. This strikes me as the most plausible explanation of their opposition to Miers.