Sunstein Discusses Bush's Post-Meirs Problem

Bush's Post-Miers Problem: Power Base
Cass R. Sunstein
TNR Online
October 27, 2005

After the withdrawal of Harriet Miers, the question is whether any nominee who is acceptable to the president's base will be acceptable to the country. For the first time in the nation's history, this is a serious question. Here's the reason: Much of the base is asserting a series of litmus tests, both on particular issues and in general. A nominee who passes the litmus tests will face terrible problems in the Senate.

The conservative objections to Miers were twofold. First, she was deemed underqualified. Second, she was deemed politically incorrect. Many principled conservatives emphasized the qualifications problem, insisting that she lacked relevant experience. (And on this issue, there was a pleasing agreement across ideological lines.) But the real intensity, for many conservatives, came from the fear that she was not a true believer--not a conservative in the mold of Scalia and Thomas. It would have been most interesting to see how the nomination would have been received if Miers had had the same under-qualification problem but nonetheless been an identifiable member of the conservative movement, a predictable vote alongside Scalia and Thomas.

Amazingly, some conservatives appear to think that no nominee is acceptable unless he or she believes that the Constitution should fit with the "original understanding" of those who ratified it. This is an extreme position--as a practical matter too extreme, very possibly, even for a Republican-dominated Senate. For example, Thomas, an avowed originalis