Jewish World Review Oct. 31, 2005 / 28 Tishrei, 5766

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Dangerous caution | The choice of Harriet Miers to be nominated to the Supreme Court, and her subsequent withdrawal, shows that caution is sometimes the most dangerous policy.

She was obviously chosen cautiously as a "stealth" nominee — someone without a paper trail or a judicial record that could ignite controversy — in hopes of avoiding a confirmation fight that the Senate Republicans had the votes to win, but had neither the unity nor the guts required to make victory certain.

Harriet Miers was a choice made from political weakness. Now she is gone but the political weakness remains. So celebrations in conservative quarters may be premature.

Liberal Senators have already gained from the time lost with the Miers nomination and they have every incentive to stall on the next nominee, to make sure that nominee is not confirmed before Congress adjourns at Thanksgiving. The longer they stall, the longer Sandra Day O'Connor remains on the Supreme Court — and she is their kind of judge, one who makes policy instead of applying the law.

Obstructionist Democrats in the Senate have had their hand strengthened by this episode. Even those who had their knives out for Harriet Miers can now piously lament her withdrawal and claim that, while they might have voted for her confirmation, they must now oppose an "extremist" nominee chosen in response to the conservative groups that forced Ms. Miers' withdrawal.

Any judicial nominee who has said that the Constitution means what it says, not what judges would like it to mean, is going to be called an "extremist." That person will be said to be "out of the mainstream." But the mainstream is itself the problem.

What is the point of electing a President pledged to appoint judges who are like Justices Scalia and Thomas, if the weakness of his own party's Senators leads him to appoint judges who are like Justices O'Connor and Kennedy or — heaven help us — David Souter?

If the Republican majority in the Senate cannot bring themselves to act like a majority, they may no longer be a majority if their base of support stops supporting them at the ballot box.

The brutal fact is that Senate Republicans have not had the stomach for a fight, either during this administration or during the Democratic administration under Clinton.

While Senate Democrats have not hesitated to obstruct the Senate from even voting on some of President Bush's nominees to appellate courts, Republicans gave an overwhelming vote of approval to even such a far left Clinton nominee as Ruth Bader Ginsburg.

While it would have been wrong to obstruct the Senate from voting on Judge Ginsburg, there was no need for the Republicans to vote for her themselves. If they thought that such cooperation would be reciprocated when their party controlled the White House and the Senate, events have shown that they were sadly mistaken.

Democrats understand that they were elected to do what those who elected them wanted. But Republicans seem to think they were elected to make deals with Democrats and gain media applause for doing so.

Senate Democrats are a united minority, while Senate Republicans are a divided majority, with prima donnas and opportunists ready to leave their fellow Republicans in the lurch when a showdown comes — even if that means risking the whole party's loss of support among voters who feel betrayed.

That is the hand that President Bush has been dealt.

Harriet Miers was his attempt to make the best of that weak hand. Now his conservative base, having rejected Ms. Miers, expects him to nominate someone with a clearly established track record of upholding the Constitution as it was written.

But does the Republican "majority" in the Senate have the guts for the battle that such a nomination would surely set off? Are they prepared to put up a fight and be satisfied with a victory on a close vote, with perhaps Vice President Cheney breaking a tie?

Or is looking "statesmanlike" in the liberal media more important to some Republican Senators, either for its ego boost or for its practical political value in running for re-election or for the Presidency in 2008?

Politically, these can be "times that try men's souls" — for those who still have souls and haven't sold them.

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© 2005, Creators Syndicate