The Miers Conspiracy Theory

Cohen: Some Suggest She Was Never A Serious Candidate

(CBS) 
If Miers is the historical loser in this latest saga, O’Connor is the practical loser. She now has to stay at a job she has wanted to leave now for quite some time.

If the president picks a doctrinal conservative to replace Miers, the theory will gain some traction. If he picks a more centrist jurist to replace the centrist O’Connor the theory will fall apart. If he picks a conservative candidate in the mold of Justice Antonin Scalia, Democrats will howl that the pick is a paean to the Republican right. If he picks a more moderate choice Republicans will howl, as they did with Miers in spite of her anti-abortion views, that the president is acting wobbly when he should be most strong.

If, in terms of decorum and political grandstanding, you look at the Roberts nomination at one end of the scale and the Miers nomination at the other, we are sure to get a candidate in the middle. Someone much less universally respected than Roberts but much more universally accepted than Miers.

Here’s my best guess on what we’ll likely see: the president will nominate a staunchly conservative female federal appeals court judge, someone who thus has a lot of behind-the-bench experience but who is immune from charges of political cronyism. There are plenty of such candidates out there.

When the Miers’ nomination first was announced, and when the first voices of doubt were raised about her qualifications, I listed several such female judges, any of whom would have made a more logical and defensible choice for the Supreme Court. All of these women pass the test that Miers could not — all of them bring to the job interview the necessary academic, intellectual, and experiential qualifications. All have top-shelf minds and temperaments. And none have top-level access to the White House inner sanctum.

How about 6th U.S. Circuit Court Judge Alice M. Batchelder, 60, who has served on the bench since nominated by the first President Bush in 1991?

How about 9th U.S. Circuit Court Judge Conseulo Callahan, whom the current president appointed to the bench two years ago, at roughly the same time Chief Justice Roberts first made his way onto the judiciary?

What about 5th U.S. Circuit Court Judge Edith Clement, an appointee of the current president, who also is a member of the conservative Federalist Society?

Or 2nd U.S. Circuit Court Judge Sonia Sotomayor, first nominated to the bench by Bush the father?

These are just a few of the less controversial selections the president could make.

Such a choice would make the nominee immune from two of the most serious charges against Miers and, thus, significantly limit the arguments of opponents of her candidacy.

If this happens, we then would see the political battle over substantive legal issues that we never saw in full either with the Roberts’ nomination (on account of his stellar reputation and obvious intellectual brilliance) or the Miers’ nomination (on account of her failure to pass even basic tests of qualifications and experience).

We will see a fight on the merits instead of a fight over process; a fight where the issues that doomed Miers are stipulated as resolved by all concerned.

For Round Three of the Battle of the Judges we are likely, finally, to see the ugly, nasty, brutal, scorched-earth showdown that’s been predicted for the past half year. Sen. Arlen Specter doesn’t like how Miers was treated? Wait until he sees what happens to her successor nominee.