Harriet Miers - The Bork/Kennedy scenario

Earlier I wrote that blame should properly be attributed to certain Republican moderates in the Senate for the fiasco that the Miers' nomination has become.

I also proposed that conservative senators vote "no" so that Democrats will be forced either to support her or face a real constitutionalist nominee to replace Miers.

Some conservatives have suggested that because Bush was backed into the corner by McCain/Graham et al., we should not oppose this nomination and we should recognize that it was Bush' best option. In fact, the opposite is true. As I wrote yesterday:

Had Bush nominated a well known, qualified judge, the blame would have been placed squarely where it belongs - On McCain and on the leftists that control the Democratic Party. But because Bush has chosen a stealth nominee, he has shifted the blame onto himself. He has protected those who would stab him in the back. Bush takes the blame instead of those who undermine the conservative fight to reestablish limited government.

I think Bush' best course would have been to nominate a known conservative. Had the nomination failed, he then could have resorted to a stealth nominee. If you are not sure about this idea, think back to 1987. Would Reagan have been better off nominating Anthony Kennedy first without ever nominating Bork?

I believe that conservatives benefited from the Bork nomination. [The best scenario would have been for Bork to have been confirmed - but that didn't happen.] Given a choice between a failed Bork nomination and no Bork nomination, the failed Bork nomination worked better.

(1) The Democrats' behavior during the Bork Senate hearings revealed the Democrats to be who they really are - partisan hacks. See the comments in Thomas Sowell's biography.

(2) The Bork confirmation process exposed Arlen Specter as the leftist he really is. The resulting Republican mistrust forced him into a primary battle during the next election that he could head off only by championing the cause of Clarence Thomas in 1991.

(3) Conservatives are much more prepared today for a confirmation battle than we were in 1987. Had Reagan failed to nominate Bork and gone directly to a moderate, he would have only postponed the inevitable leftist ambush. Leftists were waiting to ambush a conservative nominee. The Bork episode provided a learning experience and prepared us for the Clarence Thomas episode and for the confirmation of all of the conservative appeals court judges that President Bush has now overlooked in favor of Miers. The conservative preparation for the Roberts' confirmation hearings was much more thorough than the preparation for the Bork hearings. We have learned that confirmation depends not so much on the candidate and his testimony, but on the ideological battle that we must wage in the media.

(4) Perhaps most importantly, the leftist attacks on Bork galvanized the conservative movement. "Bork" became a verb in addition to a noun. There is a name for what the Democrats do. We can identify it, talk about it and prepare for it. We can campaign against them for using those tactics. We have a martyr. Judge Bork is more widely read now than he ever was before. He has written numerous books since 1987. He appears regularly on radio and TV. He is a highly sought after lecturer. I have no doubt that if Robert Bork were still young enough to be nominated, he would be confirmed today. Conservatives have learned a great deal about the constitution and what the left has done to it as a result of the post-1987 activities of Judge Bork. We now use that knowledge in political debate.



The lesson of the Bork episode is that we should not hide from ideological battles over the Supreme Court. Even if we lose, we win.

We lost the Bork battle in 1987, but conservatism was the ultimate winner. That victory has taken almost two decades of education, argument, debate, campaigning, etc. There is no reason to squander the fruits of that victory by nominating a stealth candidate now. Confirmation battles, even losing battles, are not to be feared.

Let the Democrats make a martyr out of Janice Rogers Brown. Nominate Brown now, and she will emerge either as a martyr or a Supreme Court justice. If Brown emerges as a martyr, we can always go back to Miers or some other stealth candidate.

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Update - Michelle Malkin posts a weekend Miers roundup.
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Peace Like a River nails it also.
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Another update
David Limbaugh explains that this fight is not about elitism, but about the "struggle to remain free."
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And another

Michelle Malkin and Polipundit provide a roundup of bad news for the Miers nomination.