George Bush has given up.
We should have seen this coming. During the first debate of the fall 2004 campaign, a weary and frustrated Bush repeatedly referred to how the presidency had proven to be a difficult job for him. Again and again, the commander-in-chief responded to questions about the missteps, mistakes and misdeeds of his first term by pleading that, “It’s hard work.”
The guy was clearly overwhelmed a year ago. So it can’t really come as much of surprise that he has thrown in the towel.
The evidence of his surrender is all around. The man who spent years denying global warming is now borrowing talking points from Jimmy Carter to call for energy conservation. He can’t even convince himself — let alone anyone else — that the “mission-accomplished” occupation of Iraq is functional, let alone a success story. He has essentially abandoned his primary domestic-policy initiative for 2005, admitting during a Rose Garden press conference that there is a “diminished appetite” for his scheme to privatize Social Security. And when it came to what is arguably the most important appointment of his presidency — the selection of a replacement for the critical “swing” justice on the U.S. Supreme Court – he didn’t even try.
In defending his selection of his attorney, Harriet Miers, to succeed retiring Justice Sandra Day O’Connor, Bush claimed that, “I picked the best person I could find.”
He obviously did not look very hard. Maybe that’s because the guy who used to tell him who to nominate for judicial openings, Karl Rove, is busy trying to avoid a indictment by a federal grand jury. Maybe it is because Vice President Dick Cheney’s office is in crisis, as the veep’s chief of staff, “Scooter” Libby, is targeted by the same investigation into who in the White House revealed the identity of an intelligence operative in order to punish the husband of that operative, Ambassador Joe Wilson, for revealing that the administration had warped intelligence in order to make the “case” for invading Iraq.
Whatever the explanation, the Miers nomination is a signal of surrender.
Miers is a dramatically less inspired selection for an open seat on the nation’s highest court even than the last great “crony” appointment: former President Lyndon Johnson’s naming of his sometime attorney and longtime pal Abe Fortas to replace Associate Justice Arthur Goldberg in 1965. Like Miers, Fortas had no record of judicial service. And, like Miers, Fortas’s primary qualification was unquestionably his friendship with the man making the appointments.
But at least Fortas had argued landmark cases before the Supreme Court, putting together the team of lawyers that won the unanimous Gideon v. Wainwright ruling that secured the constitutional right of criminal defendants to legal counsel. Fortas had also taught at Yale Law School, served as Undersecretary of the Interior during Franklin Roosevelt’s presidency and earned acclaim in the legal community for his courageous defense of the victims of former Senator Joe McCarthy’s ideological witch hunts of the 1950s.
Miers can point to no such record of accomplishment. Where Fortas had earned a place in legal history books before he was ever considered for a place on the Supreme Court, Miers hadn’t even garnered footnote status before Bush tapped her for the lifetime sinecure.
Yet, while the Fortas nomination was easily confirmed in 1965 by a Senate that was friendly to Johnson, his story still serves as a reminder of the perils of cronyism. Three years later, when Johnson tried to name Fortas as the replacement for Chief Justice Earl Warren, the nomination faced a Senate filibuster that ultimately derailed it. A year later, when it was revealed that he had accepted a $20,000 fee from a foundation controlled by a financier who was under investigation for violating Federal securities laws, Fortas was forced to resign from the court.
Harriet Mier’s closet may not have as many skeletons in it as did Abe Fortas’s.
But the story of the last crony appointment to the high court remains a cautionary one for Bush. Lyndon Johnson nominated Fortas for the job of Chief Justice in June of 1968, after he had announced that he would not seek a second full term. Like Bush, Johnson had given up. He lacked the political capital to hold his own party’s senators in line. The Fortas nomination was blocked when Democrats abandoned the nominee of a Democratic president.
With the rising tide of conservative criticism of the Miers nomination, Bush’s primary problem at the moment is with Republicans — not with the Democrats who, as usual, are having a hard time figuring out how to respond to crass cronyism. Columnists George Will and Ann Coulter, former presidential speechwriter Peggy Noonan and other prominent conservatives have condemned the nomination, as has Manual Miranda, who heads the Third Branch Conference, a coalition of 150 grassroots conservative and libertarian groups across the country. And Bush’s feeble defenses of his nominee have done little to silence the outcry. If the Miers nomination fails — either because it is withdrawn or because it fails to gain traction in the Senate — the reason for that failure will be the same as it was for the Fortas flop: a failing president’s inability to keep his own partisan allies in line. If enough right-wing senators – led by Kansan Sam Brownback and Oklahoman Tom Coburn – abandon Miers, and by extension Bush, this nomination could yet be crushed in a right-left vice grip. There’s no guarantee that will happen. The current Senate has a penchant for confirming stealth nominees such as Miers. But if Miers is rejected as the result of a right-wing revolt, it will not merely be a defeat for Bush. It will be the inevitable consequence of his decision – conscious or otherwise – to just give up.