Maybe they said "no, thanks..."

One recurring theme I keep coming across on far-right blogs is "why did Bush pick an unknown, when he could have chosen the well-known candidate X?"

There are about a half-dozen names that keep popping up as "better" than Harriet Miers.  No point naming them again, as you can find the same names on half the conservative blogs out there.

Well, there is one big unknown factor: did they want the job?

I know, I know, you are all saying what are you smoking?  As in, what lawyer would turn town a nomination to the Supreme Court? 

Just bear with me, here, for we truly don't know.

For discussion's sake, let's say there are 3 "consensus" potential nominees that would all have pleased the right-wing blogosphere.  Let's call them X, Y, and Z.

Candidate X was one of the many fine judges recently appointed to the Courts of Appeal by President Bush.  X was filibustered by the Senate leftists for about 3 years, and was finally confirmed only after the "gang of 7" agreed on the infamous compromise.  Now, there are a number of Senators who flat out say that, if X is nominated for SCOTUS, they will filibuster.

Put yourself in X's shoes.  You just spent 3 years of uncertainty, basically being anal-raped by the Senate judiciary committee.  Your name was constantly dragged through the mud.  You were labeled as a dangerous extremist who opposes civil rights and women's rights.  Finally, after 3 years, you get confirmed and now you have your new job with life tenure.  Do you really want to go through it all again, so soon?  If you are candidate X, you know there is a decent chance that sometime in the next dozen years or so, barring a complete take-over of the federal government by democRats, you will again be asked by the President to be his (or her) nominee for the Supreme Court.  After all, Justice Stevens is 85 years old.  Justice Ginsburg doesn't look so healthy.  And you are still young.  So why not enjoy your job on the Court of Appeals for a few years, and be confident that in time you will not only be nominated, but might even have a more agreeable Senate on your side?

Candidate Y wasn't recently nominated to the Courts of Appeals.  Maybe Y has been on a federal bench since the Reagan years.  Y has a long history of conservative judicial temperament.  Most pundits think Y is a natural for SCOTUS.  But taking a new job on the Supreme Court means tearing up a lot of roots.  Perhaps Y has been living in the Bay Area for 20 years.  Maybe Y recently bought a big new house.  Y might have 3 kids in high school.  Maybe Mrs. Y just became the CEO of some great local company.

Again, put yourself in Y's shoes.  Sure, going to the Supreme Court would be a great honor.  But would it be worth the personal sacrifice?  Maybe in 5 years, the kids will all be in college and the Mrs. will be retiring with her golden parachute.  Maybe in 5 years, Y could sell the house for a huge profit and build a dream house along the banks of the Potomac.  Do you leap at this chance now?  Maybe you have a lot of confidence that your name will come up again.  Again, there will be some more openings in the next few years.

Finally, let's think about Z.  Z looks perfect.  Z has a great conservative track record.  Lots of pundits are excited about the possibility of Z.  But what if there is something about Z that Z knows, but the public in general doesn't?  What if, whatever it is, if it came out in a Senate confirmation (and you know it would), it could really embarrass Z?

If Z is already an appellate judge, then Z is employed for life.  And Z never has to worry about the "mystery thing" coming up, because Z is never going to be scrutinized again.  But a new Senate confirmation could bring things to light.  And maybe the thing is so bad that, if it got out, Z would be pressured into retiring early.  Not that Z would have to give up the job; after all, it takes impeachment to remove a sitting federal judge.  But if Z's reputation is so besmirched that every future judgment is clouded, Z might have to hang up the robe.  Z just might prefer to keep his current job, and his reputation intact.

These are all things that we don't know.  It is possible that President Bush asked X, Y, and Z each if they would be interested in going to the Supreme Court.  And it is possible that each one, for his or her own reasons, said "Mr. President, I am honored that you would consider me, but I cannot pursue the nomination at this time."

We just don't know.

So for all you bloggers crying out "why didn't Bush choose X, Y, or Z," keep in mind that maybe he did.

Comments

[Doctor H.]

interesting... on the one hand, if, for example, X = Janice Rogers Brown, you'd think that with all the media speculation, if she truly wanted to sit on the DC Circuit for a few years, she would just come out and say so. On the other hand, if she has the ambition to seek a future nomination to SCOTUS, she wouldn't want to go on record today as "not interested."

I don't know about the Y theory: if I were Y in this case, I might just go ahead and let the media know I am not interested for the very reasons you give--people tend to accept family obligations as a reason for declining a present opportunity without it having too much of an effect on future opportunities.

And of course, if you are Z, the last thing you are going to do is tell anyone in the media you aren't interested, because that will raise suspicions and get people digging.

I could see X and Z, but probably not Y.

[Peter Porcupine]

Yours is the first good analysis I've seen of Bush's motives, and it's depressing.

We're driving people out of public service based not tn their abilites, but the drunk driving convictions of their mother-in-law.

[Coyote]

You were right the first time.

"What are you smoking?"

[Gullyborg]

Coyote,

Do you mean that you cannot envision a *single* scenario in which someone would turn down a nomination?

[Gullyborg]

Suddenly I'm remembering Miguel Estrada...

[Brad Warbiany]

I don't know about this... From my knowledge of Bush, I have a feeling Miers was his first choice. It's just gut instinct, but after watching the Dick Cheney thing, where Cheney was tasked with finding the VP and somehow ended up being the VP, my gut tells me that Miers was his first choice.

[Gullyborg]

Actually, most insiders believe that Bush wanted Cheney to bring in Colin Powell as VP and Bush turned to Cheney when Powell turned him down.

It's possible that when Bush asked Miers to help him find SCOTUS candidates, it was because he wanted her help in getting one of his top choices on board. After all, Miers is pretty tight with former Texas Supreme Court Justice Priscilla Owen...

I really do fear that a number of great candidates for the federal bench have Miguel Estrada syndrome.

[Daniel]

This is an interesting theory but it is just speculation. There are more than just 3 potential nominees that would have pleased me though.

Maybe Miers will turn out to be great but this is way to important to be unsure about.

[Gullyborg]

Of course it's speculation. But is it any less plausible than believing that, just because the new nominee ISN'T Janice Rogers Brown or any of the other "pundit approved" possibilities, that Bush has suddenly abandoned his pledge to appoint Justices of a certain conservative judicial philosophy?

I'd say the odds of my speculation proving true are probably much greater than the odds of Miers ending up being another Souter.

[jubal]

coyote, I think most elected politicians would like to be president, but how many of them would actually run? i'll bet far more would be content to be asked to be vp than would want the hassles of the top job--especially if they are still fairly young and could run for pres later. who is to say it isn't the same with judges and scotus??? lots of people think condi rice should run for pres, and maybe she would win the primary if she did--but that is no reason to think that, if we asked her to run, she would. but if the nominee asked her to be vp, would she? maybe she would. she could be vp for 8 years and still run for president on her own later. so when someone like janice rogers brown makes it the appeals court, maybe she is ready to call it good for now? maybe she truly has no desire to want to go through it all again for scotus right now, especially since if another republican wins the white house, she will be probably be asked to be on scotus a few years down the road. it makes perfect sense to me.

[Coyote]

I am saying that your theory that Miers was the pick because everyone else turned it down is, well, kinda silly.

Could one of them turned it down? Sure. Two? Maybe? Three? Very long shot.

50? Nope... Not plausible.

[Gullyborg]

I am not suggesting that 50 people turned it down. I am merely suggesting it is possible that one, two, maybe three of the consensus "better" picks may have turned it down. We have no idea why Bush is going with Miers instead of, say, Janice Rogers Brown. For all we know, Janice was Bush's first pick, said no, and Miers is his fall back gal.

We also have no idea what Bush has in store for the day John Paul Stevens retires (or dies). Bush might have good reason to believe that he will get a 3rd SCOTUS pick, and he may be employing his usual strategery in slipping in Miers now and saving the big guns for Stevens.

What is Stevens retires next summer? As in, RIGHT BEFORE A SENATE ELECTION?

Could Bush and others have inside information to suggest that, if he puts up a "moderate" like Miers now, Stevens will retire next year?

Maybe. I don't know. I am making this all up as I type.

But the point is it COULD be, and none of (except Bush and co.) know.

Maybe Bush talked to Brown, Owen, Luttig, and a few others, about being ready as a potential nominee next summer.

Maybe Bush just lost his mind.

I know most of you think that last one is most plausible. But seriously, why are you so quick to assume Bush lost his mind when you have all been so thrilled with the other 200 or so federal judges he had named up until now?

Is it more likely that A) Bush knows things we do not and is employing strategery, or B) all of sudden, the most stalwart defender of the Constitution and opponent of liberal judicial activsm we have ever had in the White House all of a sudden just lost it?

I'm leaning A.

[Jeff]

Looks like this theory may be panning out...
http://www.donaldsensing.com/index.php/2005/10/12/harriet-miers-an-off-the-bench-sub/

[Diane]

There's nothing like the durability of leftists and liberals. Have you ever noticed how leftists and liberals seem to have much better-than-average lifespans while many deeply religious conservatives seem to be cut down in their prime?

Justic Stevens, despite his age, and Ruth Bader Ginsburg, despite having been treated for cancer, could be on the high court until the next President takes office.

Recently, I looked up bios of various well-known leftists and liberals and note that they had better than average lifespans, with many living past 85. Someone ought to do research to find out what keeps leftists and liberals so healthy for so long.