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“Real people have paid real prices.”

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Conservative Richard Lessner hurled a charge of indifference to past sacrifice at Ed Gillespie yesterday at a gathering of DC’s conservative activists. “Real people have paid a real price in this fight, from Judge Bork to Clarence Thomas, Miguel Estrada, Janice Rogers Brown and others,” Lessner argued. “Their sacrifices now have been rendered meaningless.”

“By selecting a stealth candidate, an unknown quantity, President Bush has sought to avoid a confirmation fight that was vitally important to preserving our constitutional system,” Mr. Lessner concluded. Lessner is the executive director of the American Conservative Union, and a major figure among movement conservatives. But in this instance, he is wrong.

First, we should expand his list, giving names to the “and others” he cites. He could have added Carolyn Kuhl, Priscilla Owens, William Pryor, William Myers, Richard Griffin, Henry Saad, Brent Kavanaugh, and even John Roberts. There are others as well.

Most of the names on this list were nominated by George W. Bush, whose chief legal advisor on the renomination of at least half of them and the nomination of Robets has been Miers. First, the Leahy-Daschle-led Senate Democrats caused the sacrifice Lessner correctly notes, and then the Gang of 14, not George W. Bush —who has been rock solid on judicial appointments.

This apparently counts for nothing among the critics of the Miers nomination because, after all, what has he done for them lately? Mickey Kaus speculates that:

Conservatives, a D.C. Republican friend tells me, wanted a fight over the O’Connor seat for its own sake–and not just for tacky fundraising and self-promotional reasons. They think they represent the majority position on judging; they needed a confrontation to draw the line and prove it. Plus a confirmation battle would be “consciousness-raising,” as we used to say on the left, serving (in theory) to actually increase their ranks.

One reason the Miers nomination is in trouble on the right, then, is that it denies conservatives this instructive battle. It follows that a perverse-yet-promising strategy for Bush might be to give the ‘wingers what they want. Have Miers make some unnecessarily provocative right-wing noises during her testimony that gratuitously outrage liberals. A noisy confrontation would ensue. Then the liberals would be happy (they’d have something to say) and conservatives would be happy (they’d achieve their educational purposes).

Let’s be more specific. Conservatives, me included, want Ralph Neas, Nan Aron and the radical Democrats in the Senate humbled. They want the Democratic Party split over its remaining center-left Democrats and its left-fringe Democrats. Some of us want the courts to return to their proper role and remove themselves from the social engineering best displayed by the Massachusetts Supreme Court’s declaration of imposition on the subject of same sex marriage, and SCOTUS’ pronouncement that all the state legislatures in all of the states could never find a 17 year, 364 day old cop and child killer suitable for the death penalty.

In short, we have to win this battle, or all of the other battles –including the GWOT– become imperiled if not lost.

President Bush knows this and has consistently fought for his nominees, and for Senate candidates who will become Senators that support his nominees. Had John McCain and six other Republicans not broken ranks in the spring, the way would have been clear for any nominee the president wanted, but it isn’t. A filibuster fight remains –and an unknowable vote on the “constitutional option”– and if the president and his troops conclude that now is not the time to fight that battle or risk that vote, or as is also possible, that Miers is the nominee for which to fight it because she can gather the votes from the GOP side of the Gang of 14, they will have made that calculation on superior knowledge of the Senate participants.

The recriminations now being hurled at the White House are delighting the MSM and their friends on the left. There’s a reason why the Washington Post and the Los Angeles Times are running huge stories on this fight, and it isn’t because the fight is good for the conservative movement.

Now the complaints have all been aired, and everyone has put their marker down. Continuing the assault on Miers means committing to her defeat, an event that would be one of the more remarkable exercises in political self-destruction in memory. Though the GOP is poised to pick up seats in the Senate in 2006 –in Florida, West Virginia, Michigan, Minnesota, North Dakota, Washington State, to name just six possibilities– the decision to turn on the president is decision the injure those chances.

“Activists” will say this reasoning “blames the victim.” Nonsense. They have no reason to doubt the president’s judgment of this nominee, only that they’d have preferred another. (The “Souter” argument is the silliest being thrown about as the president has worked closely with Miers for a decade —see Fred Barnes’ article on this point.) Easy passage through the Senate is not an indication of ideological flaw, only of Democratic blinders. And there is no reason to believe that his next appointment won’t bring exactly the nominee they want, though I strongly suspect that will depend on who retires next, and fully expect if the vacamcy occurs next summer the Attorney General would be the nominee to replace on the Court’s left-leaning members, but a Luttig or McConnell to replace on the justices on the right though I hope none retire. Post 2006, all bets are off.

Part of my disappointment with the conservatives piling on the White House is the refusal to look at the entire political situation as it exists right now, 10 months into a 48 month term, 13 months before a crucial election, a week before the Iraq election and four years into a war that will go on for decades.

Bush and his team made a judgment on what was best for the cause of reforming the judiciary now, and he’s been stalwart in that cause throughout. Judging his judges on the Miers nomination is lousy analysis, especially as the case isn’t ripe. Talk to me in 2009 about the Bush judicial legacy. As of today, it looks extraordinarily good, but some conservatives seem intent on snatching defeat from the jaws of victory.


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