Covering the Front and Back Pages of the Newspaper
October 28, 2005
LAW: Sun Tzu and the Art of Judicial Nominations
It's too early to say with certainty what the long-range impact will be of conservatives leading the charge to cause the withdrawal of Harriet Miers' nomination. But that won't stop me from offering two lessons that President Bush should remember for the next nomination:
1. Competence is Non-Negotiable
Traditionally, the ideal with regard to the Supreme Court was to pick the best-qualified candidate from among the pool of judges, scholars, practicing lawyers and politicians who would be politically agreeable to the President. Granted, that ideal was often discarded in practice, but it was seen as desirable to follow it. There are many examples of such nominees - John Roberts, Antonin Scalia, Stephen Breyer, Ruth Bader Ginsburg, John Paul Stevens, Felix Frankfurter, Louis Brandeis, Benjamin Cardozo, Oliver Wendell Holmes.
There was always one countervailing pressure - the desire to pick a young nominee who would sit on the Court for a long time, the most obvious example of which was Clarence Thomas, who even after 15 years on the Court is younger than Harriet Miers and the same age as some of the candidates now being considered. As it turned out, Thomas was more than sufficiently skilled for the job, but his qualifications were admittedly somewhat thin at the time (I'll leave for another day the issue of why Thomas' qualifications were never as thin as Miers'; even then, once you accept the political reality that the first President Bush wanted a black nominee, there's little doubt that Thomas was the most qualified black conservative available at the time).
But the Borking of Robert Bork led to a second, new pressure against a highly qualified nominee, a pressure that had not existed before: fear that a nominee with a long record of judicial decisions and scholarly writings could be picked apart, fairly or unfairly, on the basis of that record. Thus, scarred by the Bork disaster and successive attempts to repeat the experience at the appellate level, the last four GOP Supreme Court nominees (Souter, Thomas, Roberts and Miers) have all been "stealth" candidates with limited paper trails.
The collapse of the Miers nomination is being spun in some quarters solely as an ideological battle, but I think liberal law professor Jack Balkin said it best:
The lesson of the Miers nomination is that stealth candidates must be widely perceived to have sterling credentials. President Bush was determined not to have another Souter, and he got his wish: Unlike Souter, Miers was perceived as insufficiently qualified. That made lack of clarity about her positions fatal to her nomination.
(Emphasis added). Of course, it goes without saying - as could be seen by the bipartisan nature of questions about Miers' qualifications - that the competence issue was one that resonated with people accross the political spectrum, not only giving conservatives nervous about her philosophical leanings an excuse to oppose her without objecting solely on ideological grounds but also giving Democrats a free excuse to oppose her at a later date without political consequence if it became useful to do so.
Howard Bashman sounded a similar theme, calling Miers' withdrawal "A victory for [conservatives; liberals; elitists; those who demand highly qualified nominees to the U.S. Supreme Court; bloggers]?" (See also this pre-withdrawal Bashman column). Andrew Sullivan, who'd been critical of the nomination, also focused on competence, which as you will recall was the deal-breaker for me and many others on the Right:
This is a big coup for the Washington conservative intellectual establishment and the counter-intelligentsia that has been deliberately built to tackle the left's academic monopoly these last couple of decades. They wanted one of their own on the Court, and they'll get one. At the very least, they have shown they have a veto against anyone too patently unqualified. Given Miers' credentials and post-nomination performance, we may have reason to be grateful for their clout.
My hope is that Balkin is right, and that the Miers withdrawal will come, in time, to be seen as a bookend to the Borking of Bork: a cautionary tale that presidents of any party should not go too far in seeking to avoid nominees with a distinguished public profile of litigating, adjudicating or commenting on issues of great public concern. And that, to me, is an extremely encouraging development, a healthy corrective to the Bork precedent.
2. You Can't Win A Nomination Fight You Aren't Willing To Lose
Every Supreme Court nomination, like every executive nomination and every piece of legislation supported by the White House, is a potential battle. That battle, like all battles, is fought on two fronts. The field of battle is in Congress, in this case the Senate: the President needs 50 votes plus the Vice President to confirm the nominee, and needs either 60 votes for cloture to prevent any filibuster or 50 votes to trigger the so-called "nuclear option" and eliminate the filibuster forever. The conditions of that battle, however, can be dictated by success or failure in mustering public opinion: the President may need to move public opinion in favor of the nomination to get wavering Senators to support confirmation, cloture or the "nuclear option"; at a minimum, he needs to avoid having adverse public opinion cause potential supporters to defect. Thus, each nomination must be crafted with an eye towards both fields of battle - the Senate and the public.
Because the public's view can influence that of the Senate, picking a nominee based on perceived acceptability to the Senate without regard to public reaction risks the classic problem of quagmire, where conditions in the field deteriorate if the battle is protracted because lack of support on the home front makes it impossible to keep all the President's troops in the field. A second corollary is that "the public" includes all those forces outside government that influence elected officials - the voting public, the activists who do party-building and get out the vote work, the donors who finance party politics, and the pundits (including bloggers) who take steps large and small to move public opinion. No nomination will win the unanimous approval of all these groups, but all have their roles in the process.
Understanding, then, the conditions of the battlefield, let us examine the lessons of battle that President Bush failed to absorb with the Miers nomination but needs to remember in his next choice. First, consider the objectives and the alternatives. The President's #1 goal should be to get a good nominee confirmed, with a good nominee being one who will be consistent with the stated philosophy of the President and his party and who, hopefully, will provide some measure of political benefit by confirmation - by satisfying the President's supporters, by meeting the approval of potential supporters of the President's agenda, and/or by reducing or dividing the intensity of the opposition.
But considering the benefits of confirmation is only half the battle. With fewer than 60 Senators committed to the same goals as the President in terms of philosophy and political objectives, the President must also consider the possibility of defeat and must choose a nominee who will also provide political benefits if the President's nomination is defeated. Because the first rule of any potential battle is that weakness invites opposition.
Recall Sun Tzu's dictum about war:
To fight and conquer in all your battles is not supreme excellence; supreme excellence consists in breaking the enemy's resistance without fighting.
Unlike some conservatives, I don't believe the President needs a fight over a nominee; while I would in some ways enjoy such a fight and think it would provide some benefits, I would be happier to get a good nominee confirmed without a fight, as with John Roberts.
But consider how Bush avoided a major fight over Roberts. Roberts was nominated not only with the intention of picking a nominee who would mollify the moderate Senators (liberal Republicans, conservative Democrats) who determine the immediate conditions of battle. His nomination also avoided a fight because, if Democrats had filibustered him, they would have looked terrible to the public. Because Roberts was so obviously qualified and had no ethical or other non-ideological problems, the only possible basis for opposing him was his judicial philosophy and the contention that his personal beliefs would impact that philosophy. Particularly given that Roberts presented that philosophy in fairly non-threatening terms, moderate voters would have seen this as pure obstruction. Meanwhile, Roberts was sufficiently reassuring to conservatives that he was viewed as a potential improvement on the court, and because of his relative youth, he was seen as a potentially lasting improvement. A filibuster would have ended up backfiring on the Democrats, and probably could not have been sustained for long in the face of public disapproval.
Thus, the Roberts fight would have been a good fight to lose - and precisely because it was a fight that would help Bush if he lost it, he never had to fight.
The Miers battle was precisely the opposite. Bush evidently regarded Miers as a good fight to win, as he would get a Justice he had faith in. But he failed to consider the fact that she was a terrible fight to lose. As Josh Marshall, looking across the battlefield from the opposite side, put it:
Nominations can have dynamics similar to those of political scandals.
Nobody but the President had a first-hand basis to believe that Miers was well-qualified for the job or to believe that Miers would improve the Court in terms of her judicial philosophy. Accordingly, if - as has happened - Miers was defeated, nobody but Bush himself would give Bush credit for having put forth such a nominee in the first place. Indeed, one of the predominant arguments of supporters of the Miers nomination from Day One was that Republicans should support her because the President had put himself in a position where it would be damaging to lose.
This, of course, was evident as well to Democrats, which meant that they knew from early on that they would have the initiative. With the President's own supporters divided and many of his best troops switching sides, a battle would be on unfavorable turf for the White House. With non-ideological grounds available to oppose the nominee (not just competence but the plausible charge of cronyism), the Democrats could choose to oppose - if they wanted - at their convenience without fear of reprisal. With Republicans fighting among ourselves, Democrats could afford to wait and choose the time and place to come out in open opposition. In short, by picking a nominee whose qualifications were not self-evident and who had few genuinely committed supporters, Bush created a battlefield on which he could gain nothing by losing, while the Democrats would lose nothing by winning. By seeking compromise, he ended up compromised. In the end, he was better off retreating entirely from the field and picking a new nominee.
Nor was internal opposition to Miers at all unpredictable, especially given her thin qualifications; I'll explore this at greater length another day, but while Republicans have as many different internal fault lines as Democrats, what gives the GOP a much higher level of cohesiveness is its priorities, the fact that conservatives and Republicans will accept a lot of things they don't agree with as long as the party unites behind the Big Three of national security, lower taxes and the courts. Bush could win a battle over, say, expanding Medicare by invoking the need for party unity to accomplish more significant goals. But picking a Supreme Court nominee who is perceived as unacceptable goes to the core of the party's purpose, and guarantees internal opposition. A Republican president can not hope to win a Supreme Court fight by expanding the battlefield to promise ofsetting benefits on other issues; he needs to win it on its own terms.
So no, in selecting his next nominee, Bush doesn't needs to pick a fight. But he does need to pick a nominee who is worth fighting for. If you don't pick a nominee you want to fight over, your opponents will know they can beat you by fighting.
As I have written before, I personally would prefer that Michael McConnell, the distinguished Constitutional scholar, veteran Constitutional and commercial appellate litigator, and now Tenth Circuit judge, be the nominee. McConnell might or might not provoke a fight, but it's a fight on Bush's terms, and one Bush could lose with his head held high on the basis of having picked a supremely qualified candidate (McConnell knows Con Law even better than Roberts), well-liked among Bush's core supporters and respected by his opponents. If Bush prefers someone else among the many qualified candidates available, he should look for someone about whom the same could be said. But he needs to remember that only by choosing battle can he hope to avoid one.
UPDATE: RedState says Third Circuit judge Samuel Alito will be the pick. From what I know of him, that sounds good.