David Limbaugh Speaks

I don't read David Limbaugh very often. I'm not sure I could tell you anything about him other than his column is published by Townhall. In any event, he paraphrases my position on the Harriet Miers nomination nicely, so I will give him press time here.

President Bush has made his selection, and it's not going to change. He's not going to withdraw his controversial nomination like Bill Clinton dumped his law school classmate Lani Guinier at the first sign of trouble.

For those that believe that Bush is using Miers as a stalking horse, which I doubt, this statement summarizes that. If Bush really thinks she won't get the votes, then he is gambling. I do not believe that he will pull her nomination. It is not in his nature.

Most of Miers' skeptics aren't insisting that nominees hail from elite, Ivy League law schools. But many did have their hearts set on one of a fairly small group of eminently qualified judges and lawyers who have, in effect, been in training for this position for years.

Many who want to support Miers pick up or twist an occassional statement from the critics and claim "elitism." The disappointed, like myself, are not being elitist. I'm happy that she is from a fly over law school outside of Chicago.

That groups consists of people they strongly believe to be originalists precisely because they have established a reputation as just that: unapologetic originalists. They have been unafraid or forced by circumstances to make their judicial philosophy known through their advocacy, scholarly writings, judicial opinions, speeches or otherwise.

The skeptics preferred those whose judicial philosophy is a matter of public record, or readily discernible, without ambiguity, because they are a far safer bet to be originalists than any other possible choices. They're also more likely to resist the pressures that compel some justices -- like Anthony Kennedy -- to "grow" over the years.

This is a fair statement about expectations. President Bush made a promise -- one we thought we would know was fulfilled by his nominees. That is certainly unclear right now, especially when some people had the guts to openly train for the position.

With 55 Republican Senators, some like me believed that a fight was a good thing. Limbaugh explains.

They [the critics] would welcome that nuclear confrontation, not because they're pugnacious sorts and not because they want to rub Democrats' noses in it. Rather, it's because they believe we're past due for a public debate on the proper constitutional role of the Court.

Others believe that the public is too stupid for this debate. Walk away from the fight and claim victory. We of course reject this scenario in every other political battle, be it the WOT or the culture wars.

Above all, they didn't want the president to send a signal with this nomination that he had abandoned his goal of picking a known originalist. Such a surrender could have a deterrent effect on future originalist judges working their way up through the system. It would also send the unmistakable signal that conservatives have unilaterally thrown in the towel over an issue that has motivated their grass roots like no other in the last 30 years.

This is the message sent by the nomination. As Limbaugh pointed out, even Roberts was partially a stealth candidate, though we had enough information to be optimistic. What he lacked in clarity of philosphy though he more than made up for with his qualifications and working for the right people. Miers does not possess these stealth overcoming traits.

And, of course, there is the signal to the young conservatives who might be judge one day. Keep it to yourself.

It appears that President Bush did not want to risk a confirmation fight, which is very disturbing because if he intends to make an impact in the balance of his term, other than in the War on Terror, he must be willing to fight Democrats on social and economic issues as well.

Indeed, the best insurance he has to guard against a lackluster second term is to approach all problems the way he has handled the War on Terror: with firm resolve and strong leadership, putting principle over all other considerations.

This is perhaps what makes the pick most disappointing. Bush knows how to show resolve and fight. But he only does it in the WOT. He is ready to pack up and go home on every major domestic issue. The only conservative domestic issue he won was in tax policy. His other "accomplishments" grew government (No Child Left Behind; Medicaid Drug Coverage, etc.). Bush is not the fighter we love in the WOT when the issue is at home.

And that disappoints many of us.

While the Miers nomination has been disappointing to many conservatives, what's done is done. As long as she's qualified (she doesn't have to be the most qualified to be confirmed), the selection is a matter of the president's prerogative. In the meantime, I hope that President Bush can regroup and approach the balance of his presidency with the same confidence and determination he has shown in the War on Terror.

I hope that, too. I will not be counting on it though.