October 3, 2005

TOM BELL SAYS that the Miers nomination is a Bush head-fake. Reader Mike O’Neal emails with a somewhat similar spin:

The real story here is that they called off the war. The bases on both sides wanted war (they probably wanted a war more than they wanted a victory), but the White House and the Senate did not. The Democrats didn’t want one because they would lose and look bad doing it. Bush didn’t want one because he has a big agenda and not too much time. This way he gets a Justice who is conservative enough for legacy purposes (and will have time to reassure the base before 2006), gets some points from centrists who worry about too much social conservatism (and don’t like political food fights), and gets to move on to tax reform, social security, etc. By year-end things will look better in Iraq, Katrina will have receded, Plame/DeLay/etc. will have blown over, and it may be possible to get some work done. Blogging lawyers and law profs may care intensely about the pure quality of every nominee, but it is not clear that people in general do, or necessarily should. Bush plays a long game; don’t misunderestimate him.

We’ll see, but I’m unpersuaded.

UPDATE: So is Tom Goldstein of SCOTUSBlog: “Even if Democrats aren’t truly gravely concerned, they will see this as an opportunity to damage the President. . . . I have no view on whether she should be confirmed (it’s simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O’Connor will still be sitting on the Court on January 1, 2006.”

ANOTHER UPDATE: Larry Solum looks at history. But hey, some people are happy.

Cass Sunstein: “A reasonable conclusion is that this nomination should be viewed with uncertainty and puzzlement. A silver lining: The uncertainty and puzzlement should not divide people along political lines.” Bush: A uniter, not a divider!

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