Be It Confidence or Hubris, Bush Nominates Boldly

Sure, President Bush hates being psychoanalyzed, but let’s put him on the couch anyway and try to gauge his reasons for nominating White House Counsel Harriet E. Miers to the Supreme Court.

Among the appointment’s critics in both parties, the common assumption is that Bush picked Miers because he believed himself to be operating from a position of weakness.

The theory is that Bush -- facing low approval ratings, huge challenges in Iraq and the Gulf Coast, and resistance to legislative priorities like restructuring Social Security -- flinched at the prospect of a showdown with Senate Democrats over a known conservative. So he picked a stealth candidate with few public footprints. Even one prominent conservative supporting Miers said, “I don’t think it was conscious, but I think he blinked.”

That analysis is certainly plausible. But it’s not entirely persuasive. For one thing, Bush has never been shy about undertaking big fights even while holding what appeared, by conventional measures, to be a weak hand.

He’s often pursued initiatives that lacked majority support in polls at the time he advanced them -- including the Medicare prescription drug plan that relies on private companies, not the government, to dispense the benefit, and the decision to invade Iraq without explicit authorization from the United Nations. For better or worse, he seems less concerned about how his agenda is received by the public in polls than any recent predecessor.

Moreover, Bush this year was reminded that any president, whatever his overall political situation, retains a strong hand in tussles over judicial nominations. Both sides gave ground in the compromise this year that ended a Senate Republican effort to ban judicial filibusters. But the most tangible result of the deal was that several Bush appellate court nominees whom Democrats had blocked are now sitting on the federal bench.

The approval of John G. Roberts Jr. as chief justice reinforced the message of that earlier scuffle. Roberts’ placid path to confirmation suggested that the widespread belief in the political world that modern Supreme Court nominations would routinely generate apocalyptic confrontations was wrong. With each passing vacancy, the rumbles surrounding the Supreme Court nominations of Robert H. Bork in 1987 and Clarence Thomas in 1991 look more like exceptions than the rule.

It proved far more difficult than liberal critics expected to generate public opposition to Roberts -- or even to deeply engage the public in the debate. At no point from nomination to confirmation did widespread resistance to Roberts ever develop in polls or the Senate.

That suggests the natural inclination of most Americans (and most senators) is to give the president his nominee, absent a very good reason not to. That doesn’t mean all nominees are assured as smooth a path to confirmation as Roberts, or confirmation at all. But it does hint that it requires more fuel than previously assumed to ignite a full-scale firestorm over a court selection. And that means it probably isn’t as difficult to confirm a nominee with some controversial views, as conventional wisdom in Washington holds -- especially while the president’s party controls the Senate.

Surely someone in the White House told the president that only twice since 1900 has a president’s Supreme Court selection been rejected while his party held the Senate. Or that the total number of Senate Republican votes this spring against his most controversial appellate court nominees ranged from three (William H. Pryor Jr.) to one (Priscilla Owen) to zero (Janice Rogers Brown).

So let’s try an alternative explanation: Bush picked Miers because he felt strong, not weak. Remember that Bush, throughout his presidency, has repeatedly demonstrated that he believes leadership is more about following his personal convictions, regardless of outside opinion, than building consensus. When he has the power to implement his ideas, he usually does, no matter how much critics complain.

After his victories in earlier judicial skirmishes, Bush may have calculated that nearly all Senate Republicans (and even many red state Senate Democrats) would feel compelled to support any but the most ideologically aggressive choices available to him (such as Brown). That probably convinced him he could make a selection he knew would please him more than it pleased almost anyone else (including some of his own advisors).

To select Miers, Bush bypassed a long list of prominent federal judges who are known quantities to the conservative movement, but just names on a page to him. Instead, he picked someone who is a known quantity to him, but barely a name on the page to them. He placed so much weight on the factors important to him (personal chemistry and trust) that he ignored the factors important to them (principally a tangible record on constitutional issues).

When the right recoiled at Miers’ selection, Bush’s aides and defenders argued that conservatives should put their trust not in her, but in him. In effect, they maintained that if Miers was good enough for Bush, she should be good enough for all conservatives.

That smacks less of weakness than of self-confidence so unrestrained it verges on hubris. Louis XIV supposedly declared, “I am the state.” Bush with this pick seemed to declare, “I am the conservative movement.”

The backlash against Miers last week makes clear that not all conservatives agree; Bush simply overestimated their willingness to defer to him. History says Miers is still a favorite for confirmation. But she faces the genuine threat of an informal left-right alliance that argues she isn’t the best person for the job. Too much confidence, not too little, probably explains why Bush now faces an unpredictable fight likely to weaken him whether the Senate confirms Miers or not.