During the confirmation process of then-Supreme Court nominee John Roberts, Democrats of all stripes had an easy - and credible - way to oppose him: make clear that he had almost no experience as a judge and that he refused to provide much information about his beliefs/record that might have clarified serious questions about him. Beyond any of Roberts' controversial positions on civil rights, privacy or women's rights, the simple shadowy nature of his record provided Democrats a very easy-to-communicate opposition that the American people likely would have backed (Just look at initial polls after Roberts' nomination in which the public overwhelmingly wanted more information).
Sadly, Democrats largely missed that opportunity. From almost the very first day he was nominated, Senate Democrats laid down and died. And they died in the worst way, in that they actually used Roberts' biggest weakness - the lack of clear information about his record - as their reason for supporting him. As Sen. Pat Leahy (D-VT) said in voting for Roberts, the public can just "take [Roberts] at his word that he does not have an ideological agenda."
The Bush White House, not one to overlook their opponents' weakness, are now capitalizing on Democrats missteps on the Roberts' nomination. Taking cues from the last debate, the President has nominated another person with a very shadowy record, Harriet Miers. The White House's thinking is pretty simple: Democrats have now publicly said that a nominee with a largely unknown record is acceptable, and Miers has that. Should be smooth sailing, right? Wouldn't Democrats look hypocritical to oppose Miers on the basis of her lack of real Supreme Court-qualifying experience or adequate legal credentials, in light of Democrats recent willingness to confirm a nominee with similar drawbacks?
Yes, except for one big chink in her armor - and I stress BIG chink, especially in light of the President's weakened position and swirling controversies over the deleterious effects of cronyism. It is true, Democrats would have a tough time making the we-don't-know-enough-about-her argument after their pathetic behavior in the Roberts' nomination. But, Miers has one defining characteristic that is different from Roberts, very troubling, and very politically potent: her major defining career trait is her position as a Bush crony/ultra-loyalist. Though Roberts certainly earned some stripes as a Bush crony in the Florida 2000 fiasco, his ties to the Bushies are small compared to Miers, who seems to be a de facto member of Bush's immediate family.
As Bush's former speechwriter David Frum has written, Miers "rose to her present position by her absolute devotion to George Bush." She was, among other things, his personal lawyer, a political appointee of his in Texas (where she got into a lot of trouble), a hatchet person in Bush's efforts to hide his National Guard record, and an all around Bush bootlicker (Frum said Miers said "the president was the most brilliant man she had ever met").
To even the average onlooker who barely pays attention to Supreme Court nominations, Miers' all-too-close political relationship to the White House is suspect. The Supreme Court is, above all else, supposed to be an independent branch of government, an "umpire" as Roberts' once called it. Putting a person who's major defining career trait is loyalty to the President the court is supposed to check could (rightly) raise all sorts of red flags in the public's mind, especially in light of all of the other swirling scandals that involve cronyism, and how cronyism has hobbled our government.
This is where the Democrats can make the non-ideological case against Miers, while letting the right-wing zealots rip apart Miers over all the hot button issues (they already seem to be doing a good job). With laser-like focus and discipline, Democrats must burn into the public's mind the truth about what really would compromise Miers' as a justice. It not only plays into the broader, overarching theme about the Republicans' "culture of corruption," but it also happens to be a very real, legitimate concern that would appeal to citizens of both parties concerned about cronyism/unchecked power.
Remember, there are historical clues to how effective a campaign to highlight how a court nominee is too close to the nominator. For instance, take the case of Abe Fortas's nomination as Chief Justice by President Lyndon Johnson. As the Senate historian notes, Republicans at Fortas's confirmation hearings highlighted how Fortas "regularly attended White House staff meetings; briefed the president on secret Court deliberations; and, on behalf of the president, pressured senators who opposed the war in Vietnam." And while it is true other details also helped kill Fortas's nomination, the effective campaign to highlight Fortas's all-too-close relationship with the White House had set the tone for his nomination to be torpedoed on the grounds that the President was more interested in rewarding a loyalist, rather than in serving the country.
Opposing cronyism is a way to bring together Senate Democrats of all different ideological stripes in a morally high-road opposition to Miers' nomination. It would position the Democrats as focused on defending the Constitution and the principle of three separate branches of government that check each other's power - and also position them as being serious in their opposition to blatant cronyism.
The question now is simple: will Democrats have the guts and discipline to wage this clear-cut fight?
David Sirota is a veteran campaign strategist and writer. Currently, he is writing a book for Random House's Crown Publishers about the middle class economic squeeze. Before that project, he was the chief spokesman for Democrats on the House Appropriations Committee, and before that, the spokesman for Congressman Bernie Sanders, the House's longest-serving independent. In 2000 and 2004, Sirota did press work for Brian Schweitzer, now the governor of Montana. Sirota lives in Helena, Montana with his wife.
2005 Working Assets