How low can Bush go?

The withdrawal of Harriet Miers’ nomination for the position of Supreme Court Justice marks a new low in the Bush presidency.

Officially Harriet Miers withdrew her own nomination because of the conflict over the release of White House documents. She claimed that Senate demands to release White House documents put an intolerable burden on the administration to breach executive privilege. She therefore chose the gracious path, for the good of the nation, and withdrew her nomination.

Nobody was taken in by this version of events. The conflict over papers was just a face-saving device to end her nomination quietly. In the weeks since Bush announced his nominee to the Supreme Court, opposition to her candidacy has been slowly brewing.

From the outset nobody was very excited about Miers. She was not a terrible candidate but mutterings about her being lightweight and unqualified came from all quarters. Her inability to impress senators during informal meetings did her no favours. But the hard-core organised opposition to Harriet Miers came from the ranks of her own Republican party. While Democrats stayed quiet, religious conservatives launched an escalating crusade to derail her nomination.

That Miers would provoke such a reaction from conservatives clearly came as a shock to President Bush. Harriet Miers is no liberal: she is a conservative from the inner ranks of the Bush administration. She is a born-again evangelical Christian. Despite the lack of paper evidence, there is little doubt that she is anti-abortion and opposes what the right likes to call ‘activist judges’.

When Bush announced her nomination he acknowledged that she might not be the most well known nominee. But rather than talking up her credentials he made her nomination personal. He said that he chose her because he knew her very well; he asked people to ‘trust him’ as he ‘knew’ she would make an excellent judge.

Clearly, a vocal section of his own party did not trust him. For many, the nomination of this Supreme Court justice is the defining moment of the Bush presidency. This is a nomination to fill the seat that Justice Sandra Day O’Connor is vacating. O’Connor has been the swing vote on the court for many years – her vote upheld many decisions on the court that were anathema to religious conservatives. Most significantly, O’Connor’s vote was vital in preventing the significant erosion of abortion rights, the issue that drives the battles between conservatives and liberals.

In replacing Justice O’Connor, conservatives hope to shift the entire culture of the court. They want a candidate who will not only vote the ‘right’ way on abortion; they want a political and intellectual heavyweight capable of silencing liberals for good. Religious conservatives believe that they have fought long and hard for this day. This is meant to be their moment of glory, and Harriet Miers was simply not up to the job.

A number of leading conservative republicans including President Bush’s former speechwriter David Frum funded a TV advertising campaign calling for the withdrawal of the Miers nomination. The leading conservative women’s group, Concerned Women for America, has also opposed her nomination.

Once conservative senators started to question her candidacy it became increasingly clear that the White House was going to have difficulty getting the nomination confirmed. Without the votes of both Democrats and conservative Republicans, and with nobody besides the two Texas senators actively campaigning for her nomination, the White House simply did not have the numbers to carry the vote through.

Despite his earlier protests, the president therefore agreed to let Miers pull out with a semblance of grace. Pulling Miers at this point, before she even begins her formal confirmation hearings, has avoided an embarrassing episode. But in withdrawing his choice of nominee the president has created much greater problems for the future. Bush has not only sealed his own fate as a lame duck president, he also risks exposing fault lines within his own party.

The failure of the Miers nomination came in the middle of what the New York Times described as Bush’s worst ever political week. Bush’s stock is already very low; he has never recovered from the slump he faced in the wake of Hurricane Katrina at the start of September. The grim reality of his failures in Iraq was brought home clearly this week when the death toll of US soldiers in the conflict reached the 2000 mark. With news bulletins peppered with heart-wrenching stories of loss, coupled with grief-stricken mothers questioning their sons’ sacrifices, nobody seems to be prepared to give a ringing endorsement of the president’s foreign policies.

Nor is the domestic arena any refuge. The White House and the Republican Party are awash with scandal. Former house lead Tom Delay has been indicted by a Texas grand jury for the fraudulent use of party funds. Senate leader Bill Frist is under investigation by the Securities and Exchange Commission (SEC). Washington is awash with speculation about impending indictments within the White House. Two leading White House players, Karl Rove and Lewis Libby, are awaiting the pronouncements of the special prosecutor over allegations of wrongdoing concerning their involvement in leaking the name of an undercover CIA agent and the subsequent cover-up.

It is against this backdrop that Bush withdrew the Miers nomination. To back off from a fight, when things are going so badly, just confirms the view that the president and his allies have lost their way.

One need only consider future nominations to the court to see what difficulties have been created. Whomever Bush nominates next, the nomination will have the feeling of being provisional rather than absolute. If a determined section of the Republican Party can derail one nomination that did not fit their plans, what is to stop them or others from doing the same next time?

Indeed, it is difficult to see whom the president could nominate next without coming out weakened and damaged. If he nominates another candidate like Miers, or even a more moderate candidate, he runs the risk that the candidate will be derailed again by sections of his own party. But if he picks a more openly conservative candidate with a clearer ideological agenda, he looks like he is being dictated to by the religious right. Moreover, moderate Republicans may find it hard to vote for such a nominee. The fight that this would provoke might do real damage to the future election chances of the Republican Party.

Despite all the noise made by the conservative right, absolutist conservative policies like banning abortion do not have majority support among the electorate. While anti-abortion politics galvanise religious conservatives, such policies are not election winners at the polls.

Bush has always understood this. When anti-abortionists have pressed him to promise to appoint judges to overturn Roe v Wade (the ruling that safeguards women’s right to abortion), Bush has said he thought the country was not ready to take such a step. Throughout his presidency he has been careful to keep the issue on the back burner. While he signed the ban on the so called ‘partial birth abortion’ procedure – a measure that was not so controversial – he has been careful to remain quiet on the broader issue of outlawing abortion.

The president and the Republicans may now be so directionless and consumed with their own internal difficulties that they no longer recognise how fragile is their own political cohesion. With nothing on the political horizon to galvanise the party, a bitter fight over conservative values in general and abortion in particular is the last thing that either the president or his party needs.