by Matt Barr

Betting on another non-judge

The President fielded a question today on rumors the White House was drawing up "contingency plans" in the event of a Miers withdrawal.

You can read his response at the first link above. It does not include anything to the effect that "no, there are no such plans," or "the nomination will not be withdrawn," nor even "she will make a fine Justice." For a notoriously stubborn, resolute, single-minded President, this is tantamount to an admission the nomination is doomed.

What next? I don't think the administration would do a 180 on this and pick the polar opposite of Miers -- established judge, male, "red meat" for the base, etc. I would hope they have at least one eye on the perception that they've "caved" to the base instead of simply nominated a klunker that they want to get right. They'll want to stick with their blueprint for the nomination while putting someone forward who is more impressive and less likely to be savaged as less than qualified.

What do they want to be perceived as "correcting" if they withdraw Miers in favor of another nominee?

1. Constitutional law background.

2. Impressive education and experience. (You can argue, as many do, that a big school and a big clerkship don't matter -- I'm more on that side than the other myself -- but this is about what they want perceived different about the new nominee, and with so many impressive candidates available, it will be easy to make this one happen)

3. Lifelong Republican/conservative.

4. Ability to write/persuade convincingly on complex issues.

5. Age.

6. More "like Roberts," as vague as that is -- a lot of the undercurrent of the Miers opposition has been that she's so drastically different than the way they did it right the first time.

7. Absolutely exempt from the appearance of cronyism. To the extent of avoiding Texans, perhaps.
   

What don't they want to change (IMO)?

1. Female.

2. "Outside the monastery."

3. No red meat. (Again, you can argue, as many do, that they have a majority in the Senate and have been waiting nearly 15 years before 2005 since the last Repulican-nominated Justice, but I don't think they want to be seen as running a Brown/Owen style conservative that will assuage the movement.)

I give you your nominee. Her advocacy in the Grutter affirmative action case has been discussed at some length among conservative nomination-watchers and is a separate issue -- personally, I don't hold winning a tough case against her, but some do. But IMO she represents everything the administration thinks is right about Miers and corrects so much that's wrong that she's a no-brainer.

I still support Ted Olson, personally.

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