The President Flinches
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

Harriet Miers was the subject of the first telephone call that came in yesterday. It was from an individual whose judgment of other people we’ve learned over the years to respect. Our interlocutor, herself an experienced career woman, had no opinion about Ms. Miers’s politics or policy. Our caller said that her husband had had professional experience working with Ms. Miers and thought she was an extraordinarily fine person, brilliant, caring, dedicated, hard working, generous. This was confirmed to us in another phone call with an individual who from inside the White House watched Ms. Miers exert her authority, which has been far more extensive than many grasped, with memorable grace.
Those calls, however, were the only encouragement to come in on an appointment that has stunned a spectrum of conservatives for reasons that we share. It’s not that, like Senator Leahy, we’re disappointed that the president did not pick a Hispanic woman for the job. It’s that given that the seat coming vacant was held by a justice who, in Sandra Day O’Connor, was a swing vote on the court, the president had a golden, a once-in-a-generation opportunity to move the court and to do so in the direction he had promised the voters he would move it. And to be seen as doing so. Instead, the president flinched.
It may be that this concern will prove ill-founded. We are well into the age now where the confirmation process entitles the senators to ask all the ideological questions they want, to probe for not only judicial philosophy but actual opinions about things like abortion and religion and the commerce clause. But it’s also a process in which the dodging of these substantive questions has been raised to an art and has been rewarded on the floor of the Senate. So we had been hoping for someone whose views were better known – a Theodore Olson, say, as we wrote last week, or a Michael McConnell or a Janice Rogers Brown.
Instead we have been given what appears to be the female version of another person married to the law, Justice Souter. Ms. Miers’s record appears underwhelming. Her highest profile public job until this year was heading the Texas lottery commission. Ms. Miers has no published judicial opinions, no books, hardly anything by way of legal articles. Clearly she reveres Mr. Bush, something disclosed, in National Review, by David Frum and noted by Cal Thomas in the adjacent columns. And we are told that little happened in the White House that she wasn’t involved in.
Her nomination speaks enormously well of Mr. Bush’s regard for smart, strong, professional women – and of his preparedness to reward their loyalty with big promotions. He elevated Secretary Rice to the State Department, though she was not from his Texas circle. He elevated Karen Hughes to the State Department, where we have our doubts on her performance. He promoted Margaret Spellings to the Cabinet, as education secretary. Ms. Miers, last on the list of insider women from Texas, has been rewarded with one of the highest offices in the land.
The fact that she is hard to peg ideologically makes her similar to Chief Justice Roberts. But that is not why Justice Roberts’s nomination was foreseen – as reported months ago by our Luiza Savage even before he was nominated – as so difficult to defeat in the Senate (as it proved to be). The reason his nomination was so difficult to defeat is that he had already been marked, by all who knew him well on both sides of our political divide, as a towering constitutionalist, one of a promise rarely seen. So it was easy for conservatives to overlook the fact that he, too, was hard to peg.
More broadly, in our view, the president and the country need a fight over substance. The court needs it. And the place to do it is in the Senate. The Founders understood this. They provided for it. Our country is divided. But that doesn’t mean it needs its leaders to flinch. It needs to dig way deep down and to fight over the issues. It needs resolution, which can only come through a hard fight in the Senate, one that will echo down through the 2006 and 2008 elections. The Senate flinched when it had the chance to precipitate such a battle by using the nuclear option against the filibusters earlier this year. The president’s decision to dodge the fight that is needed will only delay the resolution of our constitutional battles and the healing that will inevitably follow.