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Why The Dems Will Quickly Cave on Miers

If John Roberts was not an extreme enough nomination to filibuster, then Miers is even less so.
 
 
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"I really think it's despicable what they're doing." That wasn't an enraged President Bush lambasting the Democrats for being incorrigible obstructionists on his high court pick, Harriet Miers. That was Iowa Senator Tom Harkin, a centrist Democrat blasting conservative Republicans for dumping on Miers. It seemed puzzling, even downright strange, that a Senate Democrat would be in a tizzy over Republicans bashing one of their own.

One would think that Harkin and Senate Democrats would dance in the aisles at the rare sight of Republicans slugging it out with each other over Miers. That should make their job much easier in a showdown with Senate Republicans over her nomination. But Harkin was not the only Democrat to soft-peddle Miers. Some Senate Dems publicly, and even more of them privately, have gushed over her.

Miers has no judicial track record to take pot shots at, played a subordinate role in the Bush administration, and is a woman. The Dems' milquetoast response to her in part is based on the fawn hope that she may turn out to be an independent voice on the bench. The more optimistic hope that she could be a David Souter reincarnation.

The Bush PR machine kicked into high gear to encourage that thinking. It has carefully crafted Miers as a likeable, dedicated, absorbed, workaholic, consensus builder. That's hardly the type to get the Dems ideological combat juices stewing.

Even if there were no possibility Miers would do a Souter conversion, Senate Dems would still flounder on Miers. They trapped themselves into a corner when they buckled to the threat by Senate Majority Leader Bill Frist to change the Senate's rules on filibuster.

Frist saber-rattled that he would change the rules and drop the number required to end a filibuster from sixty votes to a simple majority. The idea was to force a vote on a hotly contested judicial nomination. The Dems, groused, huffed, and snorted that it was political extortion, but in the end they pledged to resort to the filibuster in only the most extreme cases. If Bush's pick for chief justice, John Roberts was not that extreme case, then Miers is even less so.

If some Dems were inclined to aggressively challenge Miers based on her crony relation with Bush, and her gross inexperience, Bush and Senate Republicans would mercilessly hammer them as obstructionists and spoil sports. The few times they challenged a handful of Bush's more rabid judicial ideologues, the Dems succeeded only in delaying their confirmation. Eventually most of the Dems voted to confirm them.

The Senate filibuster compromise was more than a case of the GOP outfoxing the Dems on rulemaking. In recent times, the Dems have leaped over each other trying to out shout the Republicans on defense, the war on terrorism, grab corporate dollars and favors, and downplay social and racial issues. It's a short step from being Republican Lite on the big-ticket issues to touting a Bush high court pick.

Then there's the gender card. More than a decade ago, Bush Sr. blatantly played the race card when he tapped a marginally qualified Clarence Thomas for the high court. The crass aim was to curry favor with some blacks, neutralize civil rights and civil liberties groups, and muddy the stream for liberal Democrats to get Thomas through. The well-heeled white Democratic Senators on the judiciary committee were loath to attack a black man for fear of being called a racist. It worked, but just barely. Thomas was narrowly confirmed.

When Bush Jr. snatched a page from his father's playbook, and flipped the gender card, Maryland Senator Barbara Mikulski quickly grabbed it. She testily lashed out at conservatives for applying a "double standard" in pounding Miers. The inference was that Miers was on the hot seat because she's a she. Though Miers is the Sandra Day O'Conner swing vote on the court, she's hasn't said or done anything to raise the terror level among women's groups that she will dump Roe.

If she had given any hint of that, it would ignite a mass firestorm of rage and protest from women's groups. That happened with Thomas in 1991. During the confirmation hearings they stormed the Capitol and demanded that Thomas be rejected. If women's groups protested Miers nomination, it would stiffen the spines of the Senate Dems, but that's a problematic if.

Many blacks were willing to give Thomas a pass because he's a brother. They hoped that once on the court he would show sensitivity on racial and criminal justice issues. That was a ridiculous hope, and Thomas quickly dashed it. Women's groups likewise hope that if Roe does come to a vote, Miers, unlike Thomas, will show judicial flexibility and not reflexively vote to toss it. That may be wishful thinking too.

If the 44 Democrats and one independent voted as a bloc, and got six Republicans to go along with them, they could defeat Miers. But that's also wishful thinking. The Senate Dems have no stomach for that fight. They'll quickly cave on her.

Earl Ofari Hutchinson is an author and political analyst. He is the author of 'The Crisis in Black and Black' (Middle Passage Press).