The politics of the Miers Withdrawal

[isomin at gmu.edu]

A few observations on the politics of the Miers' withdrawal:

Although I welcome this development, I have to confess that I didn't see this coming.  I thought that Bush would not withdraw this nomination so long as there was still a good chance that it might pass. And I believe that there still WAS such a chance on the day Miers got the axe. At the very least, the White House and Bill Frist could still round up a minimum of 25-30 Republican senators to vote for Miers. And that means they needed only 20-25 Democratic votes (plus Cheney's tiebreaker) to put her over the top. Given that Minority Leader Sen. Reid was a strong Miers supporter (as shown most recently by his statement lamenting her withdrawal and blaming it on the "far right"), my guess is that the necessary Democratic votes would have been there. Moreover, the more conservative Republicans opposed Miers on grounds of judicial philosophy, the stronger the signal to Democrats that Miers would be a justice to their (relative) liking. 

So why did Bush withdraw the nomination? I highly doubt that it was really because of the Senate's demand for documents. After all, this demand should have been foreseeable almost from day 1. Rather, the nomination was withdrawn because Bush and his advisers saw that even a successful confirmation would cost them politically among conservatives without any compensating benefits in increased support among liberal Democrats. The conservative legal community made it clear that they would not forgive Bush for nominating a potential Souter wannabe with weak credentials. Meanwhile, Democrats were unlikely to do Bush any favors for giving them Miers, much as they might prefer her to the alternatives. 

Thus, we have a rare case where a president could gain politically (or at least cut his losses) by withdrawing a nominee that still had a good chance to be confirmed.

In closing, I can only express the hope that the Bush administration's other mistakes can be as easily corrected as this one. Sadly, I very much doubt it!



Ilya Somin
Assistant Professor of Law
George Mason University School of Law
3301 Fairfax Dr.
Arlington, VA 22201
ph: 703-993-8069
fax: 703-993-8202
e-mail: isomin at gmu.edu
Website: http://mason.gmu.edu/~isomin/