Harriet Miers will not join the Supreme Court.
It may seem a little early to say that; Miers’s Judiciary
Committee hearings, after all, don’t even start for two weeks. But
given the news this week, I think it’s a pretty sturdy limb I’m out
on.
John Fund reported on Monday that Texas Supreme Court Justice
Nathan Hecht and Dallas-based federal Judge Ed Kinkeade, both
friends of Miers’s, apparently assured social conservative leaders
on a conference call that Miers would vote to overturn Roe v.
Wade. Hecht and Kinkeade deny it, but two of Robert Novak’s
sources, who were on the call, confirm Fund’s story. And in a
document issued to the Judiciary Committee on
Tuesday, it was revealed that Miers pledged, in a questionnaire she
filled out for the Texans United for Life Political Action
Committee (TUL-PAC) during her 1989 campaign for Dallas City
Council, to support various pro-life policies, including a Human
Life Amendment. That may do a little to reassure some conservatives
on Miers, but it won’t be enough to earn her monolithic support
from the Right. After all, if Miers is defeated or withdrawn, her
replacement will almost certainly be at least as reliably
conservative as Miers, who, as I noted last
week, appears to believe that public universities can
constitutionally employ race-based admission policies.
Democrats might have concluded that it would be better to back
Miers than risk facing a stronger conservative. But after the
latest revelations about her pro-life views, Miers can expect
almost no support from the party of Roe v. Wade.
Consider just the Judiciary Committee. Unless she explicitly
declares fealty to upholding Roe, the five Democrats who
voted against John Roberts won’t vote for her. The three who did
vote for Roberts — Herb Kohl of Wisconsin, Russ Feingold of
Wisconsin, and Patrick Leahy of Vermont — did so on the grounds
that the overwhelming qualifications of the nominee trumped their
ideological concerns. With Miers, the qualifications are
significantly less and the ideological concerns are now arguably
greater. Miers will probably not get even a single vote from the
Committee’s eight Democrats.
She can’t count on Committee Republicans, either. Another
conservative Committee member, Jeff Sessions of Alabama, commented after the TUL-PAC questionnaire came out that
Miers still needs to “show she has the capacity to be a Supreme
Court justice.” The New York Times reported two weeks ago
that after meeting with Miers, conservative Committee member Sam
Brownback of Kansas “said he would consider voting against the
nomination, even if President Bush made a personal plea for his
support.” And squishy Committee Chairman Arlen Specter, along with
ranking Democrat Leahy, it was reported yesterday, was very
displeased with Miers’s “incomplete” answers to
a Judiciary Committee questionnaire.
Under a bipartisan agreement, Supreme Court nominations can’t be
killed in committee. But if all the Committee Democrats and even
one Republican vote against her, the vote will be 9-9 and Miers
will go to the Senate floor without a recommendation that she be
approved. This will make it much harder to get Miers confirmed on
the Senate floor. It will be harder still — probably impossible —
if ten or more Senators vote against her in committee.
“This is going to be an unusual hearing,”
says Specter, “where I think all 18 senators are going to have
probing questions.” There’s not much reason to think that Miers can
skillfully navigate that buzzsaw.
Her nomination is doomed.
