The Political Price of the Supreme Court Nominees

Unless something unexpected comes out about Harriet Miers, she will most likely be confirmed. What may be most important in the upcoming political debate is not how many votes she will receive, but the political price which the GOP can be made to pay.

While we cannot be sure in light of their limited track records, I do not believe that either John Roberts or Harriet Miers is as far right as Scalia and Thomas. Even in the event I’m wrong on this (which would be quite scary for the future of this country), it is notable that Bush refrained from appointing judges who are openly as far from the mainstream as Scalia and Thomas. While Republicans might control the White House and Congress, few of their positions are accepted by more than a small minority of voters.

There is an important lesson here. George Bush, who despite all the questions as to his intelligence, knew to run pretending to be a moderate in 2000. He knows that his far right base will never be accepted by the vast majority of voters. Bush managed to get reelected due to a combination of the inherent advantages of incumbency, fear of terrorism despite his total incompetence in handling the problem, and successfully demonizing John Kerry. None of these tactics would help a Supreme Court nominee. Nominating someone who openly represents the views of the far right could be the final straw in exposing the extreme radicalism of the current GOP leadership and getting them swept from power.

In addition to the factors leading to Bush’s narrow reelection mentioned above, the additional factor which pushed him over the top was the support of the far right. Bush campaigned with promises of appointing justices such as Scalia and Thomas, realizing at the time that this would be politically impossible once the average voter found out what this really means.

For several years the Republicans have remained in power by pandering to the extreme right while still keeping elements of the right-of-center middle. What happens with the Supreme Court appointees may be instrumental in ending the ability of the GOP to balance these groups. The far right is already angry that Bush has not chosen a nominee who has openly supported their views. There is considerable danger to the GOP that this could lead to many of them seeing little point in voting in 2006 and 2008.

Democrats need to use the confirmation hearings to show where they differ from Republicans on important issues such as restraining the Executive Branch and limiting government intrusion in individual’s lives. It is inevitable that the party in power will be able to select the Supreme Court justices, but this also means they must take responsibility for having control of all three branches of government.

Abortion, for example, may finally become a lose-lose issue for the Republicans. With the courts taking abortion off the table, people could vote Republican in the past without fear that abortion rigts would be compromised. If Rowe v. Wade should be overturned, it would be a tragedy for the women involved, but immediately give many people reason to vote Democratic in every Congressional, legislative and gubernatorial race. My bet is that Rowe v. Wade will not be overturned, causing the Republicans to lose the votes of many on the far right who will finally realize how the Republicans have been receiving their votes without intending to give much in return.

Everything above could have been written before the nomination of Harriet Miers as it was a pretty safe bet that Bush would realize the need to stay away from a nominee who was openly on the far right. The Miers nomination provides one additional political advantage. Even before her nomination, the cover of Newsweek carries the headline, “The GOP: A Mounting Crisis of Competence & Cronyism.” The Miers nomination leaves them open to continued criticism on both counts.