What Bush Is Really Up To

A lot of people are asking: why Miers? Why would Bush ignore the legions of conservative legal minds that have been elevated to appellate courts throughout the past decades? Why would Bush nominate someone from his inner circle when he's already facing charges of rampant cronyism? Bush seems to have made no one happy with his pick - is he stupid?

No. Miers was Bush's best pick. And here's why.

I think Bush could care less about "strict constructionism" or abortion or gay marriage or all that other crapola that the media throw about during nomination time. He's really trying to curtail the Supreme Court's interference with his war on terror, and doing a pretty good job of it.

Remember Hamdi v. Rumsfeld? In that case, the Court ruled that Yaser Esam Hamdi, an American citizen, had the right to challenge his "enemy combatant" status in court. The decision was 8-1, with only Clarence Thomas stating that the exigencies of the war on terror supersede Hamdi's habeas plea. Certainly no Bush nominations are going to change that balance at all.

But look at the case closer. Four justices went further in their opinions, saying that not only could Hamdi challenge his status in court, but that the government was wrong in holding Hamdi as an enemy combatant. The four justices were Souter, Ginsburg, Stevens, and - here's the kicker - Scalia.

Scalia's argument was that the only way the executive could have the right to detain a citizen as an enemy combatant was through an invocation of the Constitution's Suspension Clause. That requires an act of Congress, and Congresspeople aren't about to face re-election with the suspension of everyone's habeas rights on their records.

Scalia was in the minority - barely. Had another case come up challenging the right of the Executive to hold citizens as enemy combatants, it would have been decided 5-4 in Bush's favor. Both Rehnquist and O'Connor, the two justices being replaced, were part of the five.

Therefore, the last thing Bush wanted at this point was another Scalia. Another Scalia would seriously limit his ability to detain citizens that might be al-Qaeda members indefinitely. But neither Roberts nor Miers is "another Scalia." Roberts has ruled in favor of the Administration in a war-on-terror case that came before the D.C. Circuit. Miers is the current White House Counsel. Both are reliably on the side of deference to the executive when it comes to terrorism cases. Bush didn't want to take any chances - one false step, and his entire power grab comes a-crumbling down.

The only pick that would have made as much sense as Miers was Alberto Gonzales. But Gonzales made the mistake of making his moderate views on social issues public, so he would draw even more flack from the conservatives than Miers is getting. And Gonzales is a lightning rod for issues of executive power. He drew a lot of opposition during his confirmation as Attorney General, and that would only be amplified by the intense pressures of a Court confirmation battle.

Bush's political calculus is this: neither Miers nor Gonzales would make conservatives happy. So nominate Miers and get the support of liberals and Democrats who'll see Miers' moderation on social issues and who'll think they wouldn't get much better than that from Bush. He'll lose the Dems' support if the Miers debate becomes about executive power, but he knows the media and interest groups will focus on her views on abortion and church-state separation just like they do for every judicial nominee. Now he'll need to pull off just enough Republican votes to win confirmation in the Senate - it should only take five, and Bush could probably get fifteen in his sleep. Thus, the detentions are safe.

Sure, Bush's picks look confusing if we think they're about social policy issues. But Bush's entire presidency has been about the war on terror since September 11, 2001. It's what he ran on in 2004, and it's what keep his approval ratings above 40. Somehow, people seem to forget that when they start looking at the Supreme Court. If we look at the nominations of Roberts and Miers through that lens, it all becomes crystal clear.