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Washington-The failed Supreme Court nomination of Harriet Miers was, in the words of one political-legal scholar, the perfect storm: the convergence of a bad nomination, a weakened president and an infuriated political base. But now scholars and others wonder if the judicial confirmation process itself will weather this particular storm. Although memories of the Miers nomination are likely to fade quickly if President Bush, as he indicated, promptly names a replacement for the seat held by Justice Sandra Day O’Connor, the significance of the Miers withdrawal for the nomination-confirmation process in general may be more lasting. A president’s withdrawal of a Supreme Court nomination is an “extraordinary act,” noted Professor Craig Green of Temple University James E. Beasley School of Law. “Presidents very infrequently withdraw their nominations without going through the Senate process,” he said. “Since the beginning of the republic, it has happened only twice.” (Not including Miers.) In the wake of the Miers withdrawal, political science and legal scholars who have studied judicial selection noted that the withdrawal: Marks the first time a group within the base of presidential support has killed a Supreme Court nomination and done so in a very public way and after the nomination has been submitted to the Senate. Reflects a shift in interest group tactics away from trying to dominate the confirmation process and toward trying to control the nomination process. Short-circuits and undercuts the Senate confirmation hearing, which in recent years appeared to be gaining new importance in the process. Reinforces, in times of divided political control of government, the use of stealth nominees, but, in the case of the Supreme Court, ones with some discernible record pointing to a judicial philosophy. Spells increasing difficulty for lawyers without strong judicial or public office experience to achieve nomination and confirmation to the Supreme Court. “Every failed nomination has a lesson,” said Green. “With Abe Fortas, it is the financial stuff is very important, With Robert Bork, it is you don’t get someone who is perceived as outside of the mainstream thinking. With Douglas Ginsburg, it is to watch out for drug use. “I think there will be lasting lessons drawn here, and, in part, that lesson depends on what happens next.” From a political science point of view, there is “one surprising aspect and one profoundly unsurprising aspect” to the Miers nomination withdrawal, said Professor David Law of the University of San Diego School of Law, who also teaches political science at the University of California, San Diego. The nomination’s withdrawal was “profoundly unsurprising” because of how it fit like a glove statistical models of nominees likely to be confirmed or not, he added. Nominees can take “one type of hit but not two” on two measures and still get confirmed, he explained, saying that the measures are qualifications and the nominee’s ideological distance from the median senator, or average senator. “Here, the median senator is right of center. “A nominee who is poorly qualified but ideologically like-minded can get through; a nominee perceived as very well qualified but not ideologically like-minded, can also get through,” Law said. “But when a nominee is both perceived as deficient in qualifications and ideologically distant from the median senator, you have a recipe for confirmation failure. That’s what happened here.” But the “surprising aspect” of the withdrawal is “members of the president’s own party forcing the withdrawal of a nominee,” he said. “When Abe Fortas was filibustered, some southern Democrats did join Republicans in opposing Fortas’ elevation to chief justice. Putting aside the unique situation of southern Democrats, [Miers' withdrawal] is unusual.” Unusual and part of the larger trend of interest group involvement in the judicial selection process, said political scientist Richard Davis of Brigham Young University, author of Electing Justice. “Essentially what has happened in a way not seen much in the past is there is a deeper connection between the politics of presidential campaigns and the Supreme Court,” he said. “President Bush is the latest iteration of that. Is there an add-on here? Yes, for the first time you see a group within the base of presidential support who effectively kills a nomination and in a very public way.” Internal intervention Prior to Miers, groups within a president’s base intervened in the process “internally,” Davis said. “For example, when Bruce Babbitt was put forth in 1993, the environmental groups said no and Clinton acquiesced. That was a base group that said no. Women’s groups nearly killed the Ruth Bader Ginsburg nomination. She was not seen as safe. She was off the agenda of the White House for several months. But the women’s groups were very reticent to say they had any animus toward Ginsburg in 1993. “This is the first time we’ve seen the base rise up after the nomination,” Davis added. “That is a significant change. It suggests the power of these groups. They are willing to go up against one of their own and in public.” Also different was “interest groups essentially trying to dominate the nomination process as opposed to the confirmation process,” said Michael Gerhardt of the University of North Carolina School of Law. “With [Robert] Bork, they were trying to influence the confirmation process. Now, they’re trying to dictate to the president the kind of person to nominate.” Lee Epstein, professor of law and political science at Washington University School of Law in St. Louis, said she is “very skeptical” now of a nonjudge without a national reputation in academia or politics ever getting on the Supreme Court. The problem for the interest groups is there would be no real record, agreed Davis. “As John Roberts made the point: ‘I can work for both sides. It depends on who hires me,’ ” Davis said. “ For interest groups who want assurance the person will vote their way, an attorney doesn’t provide that assurance. I think it’s possible but I think there would have to be some record. We are at a point now that unless you have that record, the conservatives are going to balk and if you have that record, liberals are going to balk. That’s why Bush was trying to slice it very thin-a stealth candidate without much of a record.”

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