The politics of the Harriet Miers nomination seem to be a complete a zero-sum game. The more the White House tries to reassure fuming conservatives that the Supreme Court nominee will "vote the right way" the more the Democratic opposition ramps up to oppose her. The Bush administration looks to be in a box with no sure way out. Unless the unthinkable is true: Maybe George W. Bush is far smarter than we think.
The key to opening one's mind to that possibility is remembering that this battle is all about the legality of abortion in America. This is illustrated by what happened when the White House reached out to reassure conservative activist James Dobson about Miers. No sooner had Dobson declared he had insider knowledge on Miers than liberal senators were crying foul about backroom deals.
This was followed by The Washington Post's Richard Cohen's putting abortion front and center, highlighting this Dobson quote regarding his endorsement of Miers: "If I have made a mistake here, I will never forget the blood of those babies that will die will be on my hands to some degree."
Cohen took this the only way it can be taken: "that [Miers] will smite Roe v. Wade when she can." Or at least that is what Dobson thinks.
Meanwhile, Rush Limbaugh defines the word "penumbra" to his listeners while trashing Harry Blackman's Roe opinion. Regard for the Constitution or legal background or cronyism, are all valid points to be made with regard to Miers, but abortion remains the one issue to rule them all. On abortion as on all other issues of jurisprudence, Miers is an unknown quantity, and conservatives simply think they deserve better.
But a hissy fit is a sign of self doubt, not confidence. Conservatives must be animated by the sneaking suspicion that they do not stand astride American politics quite the way talk radio and the increasingly myopic right-wing blogosphere suggest they do. Peter Canellos of The Boston Globe was one of the few to pin the matter down by noting, "Even with control of the White House and Senate, the Republican Party doesn't have the votes to put an open opponent of abortion rights on the Supreme Court."
This is where President Bush—or someone on his team—might have a clearer read of the political situation than it first appears. Conservatives opposed to Miers are essentially validating Miers as a conservative lite insufficiently opposed to abortion. Practically, that's just where Bush should want her to be.
For even as Republicans clash one against another, Democrats are still standing by, flat-footed and flummoxed and utterly unsure of what to do next. They have some hard choices to make because Bush chose Miers.
Yes, there's the on-the-secret-orders-of-James Dobson route; that's the easy one. If Miers looks to be an anti-abortion zealot, bent on overturning Roe, they go to war to stop her. But what if she is not? What if there remains doubt about how she would vote on abortion topics? That was the White House's original plan for nominating her, let's not forget. More confusing still, what if her vitally important Senate Judiciary Committee testimony leaves the impression that Miers would leave abortion alone as a settled matter in American jurisprudence? Do Democrats then morph into her biggest supporters, the best possible outcome they could expect with George Bush doing the nominating?
Weighed against the long-term liberal value of securing Roe is the short-term possibility of inflicting serious harm on Bush and splitting the Republicans into warring factions heading into the always rocky midterm elections for a lame duck president. To do that, Democrats could come at Miers hard, knowing full-well that she lacks a unified base of support. And suppose they do stop her nomination—or more likely, induce the dutiful Miers to withdraw—what then? Democrats seem unable and unwilling to carry any kind of fight to Bush on fiscal policy beyond tired class-warfare rhetoric or on foreign policy beyond tired multi-lateralism. Bush has hit that stuff over the fences repeatedly.
Therefore, as painful as it may be to admit, Bush might know what he is doing. He is walking away from a fight on abortion that he and his pro-life allies were likely to lose, a decision that leaves the always apocalyptic pro-lifers positively seething, denied the epic, soul-cleansing battle they long desired. But also without any other place to go. Not to mention that post-Miers, Bush runs out to give speeches on terror, terror, Islamofascism, terror, 9/11, bin Laden, Iraq, terror, and terror just to juice up another no-alternative issue for conservatives to ponder.
If he must, Bush will fight the Miers fight without conservative help, but against Democrats unsure of what to do. To keep them unsteady, it actually helps have to schoolmarm Laura toss around liberal buzz words like "glass ceiling" and "sexism," and to have Miers's old Dallas chums describe her marriage-free lifestyle as "New Age" and "very European." This along with shards of Republican loyalty might be enough to get her on the court. If not, Bush goes back and selects someone else even more qualified, having spent the energies of all possible opposition. Harriet Miers will worship him regardless.
Brilliant, huh? And pretty damn scary.