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October 10, 2005

Balkin on Miers

On Balkanization, Jack Balkin, a brilliant though leftwing law professor at Yale, writes about whether the nomination is in trouble. (I met Jack about 25 years ago, though I haven't seen him since, and if he were to read this, I doubt he'd figure out who I am. We were involved in artistic pursuits, only partly related to law, that required considerable creativity. I can assure you that Jack was so creative that I sometimes wondered whether things were too easy for him.)

Anyway, Jack writes about a new book by a couple of political scientists about judicial nominations since the Eisenhower administration. Some of the findings are pretty obvious -- that nominees who are perceived as highly qualified get broader support, even from people who oppose their ideology. Nominees who are perceived as minimally qualified get fairly strong support from their ideological supporters but dramatically less support from those who are in the middle or ideologically distant. Jack notes that Bork was an exception to this, perhaps because his opponents successfully painted him as extreme.

Here's the really interesting part of his post:

From this chart you can also see the potential disadvantages of a stealth candidate. By definition a stealth candidate's perceived ideology is fuzzy and uncertain. As a result, more Senators from the President's own party have reason to believe that the candidate's views might differ markedly from their own. That gives them less incentive to support the candidate, all other things being equal. Put another way, the less qualified the candidate appears, the greater the chance that the uncertainty about his or her judicial positions-- the defining characteristic of a stealth candidate-- loses the nominee potential supporters he or she might otherwise have enjoyed. Note that this problem with stealth candidates arises only if their qualifications are in doubt. A nominee like David Souter benefited greatly from his prior judicial experience, his Ivy League credentials, and the perception that he was extremely bright, studious, and able. Indeed the stealth strategy is best designed for situations when the candidate is widely perceived to have strong qualifications. If a stealth candidate's qualifications are clearly excellent, lack of clarity about his or her ideology is more likely to help a candidate than harm him or her, because it greatly increases the chances of support from Senators who suspect the candidate's ideology is quite different from their own.

Harriet Miers is a stealth candidate whose qualifications have been questioned, whether fairly or unfairly. That makes her potentially far more vulnerable than John Roberts or even David Souter. She is vulnerable not because people on the left are uncertain about her judicial views-- for that uncertainty might actually gain her some votes-- but because people on the right are not certain whether she will be reliably conservative.

The strategy for Bush, Jack writes, is to persuade senators that Miers is highly qualified and to persuade conservatives that she is highly conservative. He ends his post with this:
Miers has a good shot at confirmation if this public relations campaign is successful and the President can convince his party to trust his assessment of Miers' likely views. On the other hand, if he cannot command virtually unanimous assent from the Republicans in the Senate, the nomination may be in for a bit of a rough ride, because he will have to rely on help from a substantial number of Democrats. And this creates a real problem for the President: The more clearly and successfully he defines Miers as a strong conservative, the less likely Democrats are to help him get her confirmed. But if the President lets Miers' views remain undefined and fuzzy, it will be far more difficult to keep members of his own party in line.
Those of you who think this is obvious, go take a look at the chart. It puts all of this in really good perspective.