Kenny Rogers Was Wrong

Every hand isn't a winner, no matter how well you play (or think you play) the game. The cards Mr. Bush has dealt himself (and it's important to keep reminding people that he is the dealer. The firestorm that has arisen is a result of his actions alone.) by nominating Harriet Miers are a loser, regardless of whether she is confirmed or not. Here's why:

1) Bush has driven a wedge into his own base of support. By failing to keep what we regarded as a promise (maybe he didn't) to appoint judges like Scalia and Thomas, he has turned his back on his most loyal and consistent backers, disappointing us at the single most crucial point of our support. He won't be running again, but hundreds of members of his party will run next year, and they're going to desperately need the help of the people Bush has just given the cold shoulder.

2) Bush has confirmed the principle of a "seat" on the court that must be reserved for a person of the requisite gender, race, marital status, height, dog ownership or whatever else gets thrown in the mix next. By originally nominating Roberts for O'Connor's seat, he did the right thing--but then reversed it at the first opportunity. This affirmative action appointment (and there really is no other word for it) will have consequences that linger far longer than Miers sits (if she does at all) on the court.

3) Bush has also further compounded the stealth nominee precedent. As Robert Bork (who knows a little about confirmations) noted, the nomination of Miers sends a powerful and negative message to every bright, driven, well-spoken young conservative in the legal profession--shut up now while you still have a chance to be appointed to something. This self-enforced vow of silence has profound long-term implications on the ability of conservatives to shape thought and dialogue on the legal issues of our day.

4) Bush has forever forfeited the high ground of qualification for appointment to the high court. Roberts was unquestionably outstanding, his credentials acknowledged by supporters and opponents alike. There is not a single person on the face of the earth who can say that about Harriet Miers--at least not with a straight face. Instead we get told she brings coffee and donuts to church, that she's a stickler for details (except for her personal bar membership dues of course), that she owns a gun, and that she was a trail-blazing woman. Nice, but so? There are millions who fit that description, and they shouldn't be on the court either.

5) Bush has blown an opportunity he may never get again. Maybe another member of the Court will retire (or be retired by God) but that is no certainty. Yet knowing this might be his last opportunity to shape the future of the Supreme Court and encourage it to return to the views he professes to hold, he nominated an unimpressive, unknown for the job. Might Harriet Miers turn out to be the second coming of Scalia or Thomas? Maybe, but why settle for guessing? I know, Dr. Bush the cardiologist "looked into her heart" and concluded she wouldn't change in twenty years. That's pretty thin gruel to ladle into the bowls of your hungry constituents.

So to finish with another line from Kenny Rogers, it's time for the President to "fold 'em" with Harriet Miers. Will that happen? Not a chance in the world. He's bound and determined that he is going to stay in, but he will lose the pot, even if he somehow manages to get his unqualified friend confirmed.