Miers, Alito, and the Limits of the Conservative Movement

I think a lot of people laughed at the Bush administration when they finally blinked and pulled the Miers nomination. Underqualified, unglamorous, and most importantly, unappealing to virtually everyone outside the West Wing, she never really stood a chance. BushCo overestimated the confidence his base had in him as a leader, and he was caught between the pincers of conservative intellectuals outraged that he hadn't picked one of them and Christian fundamentalists who found waffling on the issue of abortion to be only slightly less of an abomination than homosexuality.

Yet, many on the left seem to think that the Miers nomination was some sort of tactical feint -- push an unqualified, laughable candidate out there, then stick it to us with a red meat conservative. Well, ignoring the fact that the Miers nod was book-ended by two fabulously qualified and broadly popular nominations to key positions -- John Roberts to the Court itself, and Ben Bernanke to the Fed chairmanship -- it's unclear what exactly BushCo would've gained from such a strategy. Were they trying to divide their base to show that they're not monolithic? Was the strategy to make the Democrats even more quiescent and supine than usual? That whole idea doesn't fly.

No, Bush was rewarding loyalty with a position -- see Brownie for another example -- and his base showed that they are more loyal to competence and to track record than they ever will be to him. So, lesson learned, Bush on Monday did the only sensible thing that he could do -- nominate a staunch conservative who would satisfy all the disparate factions of his base. Give them the fight that they've been waiting for.

A fight that, um, they can't win.

Samuel Alito probably won't be a Supreme Court Justice anymore than Miers. He's simply too far to the right. And as his views on race-based discrimination, disability-based discrimination, abortion (which, according to the Chief Justice, is settled law), and a host of issues relating to the everyday concerns of the American people come to light, the GOP is going to find themselves on the wrong side of a bruising battle. Alito has a 15-year record on the 3rd District Court of Appeals, and they can trust that every liberal group in the country will be scouring his opinions for the sick things he would do as an associate justice.

Bush's problem is, he's not popular. And Alito is a lightning rod for moderates and progressives to distance themselves from and actively work against. In the end, he may be counting on Dr. Frist to invoke the nuclear option, or for Southern Democrats to break ranks with their party. But uh, confirmation hearings aren't going to start until January, and it's highly doubtful that Democrats will be voting with a highly unpopular Republican in an election year. What's even more unclear is the impact that Frist's insider trading investigation and presidential ambitions will have on that fight. Will he want to be seen as "a uniter, not a divider"? Will he be unnerved by possible indictment?

The stars just don't seem to be aligned for a radical Republican -- a reactionary, paleoconservative, pre-New Deal judicial activist -- to make it onto the Supreme Court. Sandra Day O'Connor may just have to stay put for a while.