SAM BROWNBACK took a pass yesterday, preferring to wait and see on Harriet Miers -- a position that masks the deep disappointment her nomination to the Supreme Court has evoked among the most conservative of President Bush's supporters.
The Kansas Republican, Judiciary Committee junior member, and possible presidential candidate three years hence had said a lot more than wait and see in the days before Bush's decision to try to elevate his friend and intimate White House aide. Reflecting his borderline satisfaction over John Roberts's smooth-sailing confirmation in the absence of firm reassurances on social issues, Brownback had said he wants more on the president's second go-round -- something approaching solid evidence that the nominee would be a foe of abortion and gay rights.
Not only did he not get that; Brownback and his conservative friends got the back of Bush's hand. Having essentially held their tongues -- and then their noses -- during the hearings on the Roberts nomination, their reward was an even blanker slate for the hole being left on the court by Sandra Day O'Connor.
What bothered conservatives privately about Roberts was the extent to which he went out of his way to respect the court's most important precedents and the modesty with which he said he would approach big issues. They smelled, at best, incrementalism, and they believe that yesterday Bush gave them even less than that.
This is the most important moment yet in the Bush presidency, when his most vocal and activist supporters have felt like they were on the outside looking in. Their disappointment -- and privately, there is a great deal of anger -- should be the cue for the rest of us to join Sam Brownback in his posture, but to do so with a strong, built-in bias in favor of her confirmation in the absence of shocking, disqualifying evidence.
If the president has already acted to replace the late William Rehnquist with the functional equivalent of a clone, he appears to have chosen the one woman in America most likely to at least resemble Sandra Day O'Connor as her replacement.
The comparison is not entirely apt. O'Connor's background was politics as well as the law. Harriet Miers's most important background is in the private practice side of the law, with Bush service in Texas and here as a bonus. Despite years of labor on his Texas and White House teams, her reputation is as a big-time litigator in Dallas and Bar Association junkie. That is neither better nor worse a resume than O'Connor's was 24 years ago, it's just different, more behind the scenes. The image, however, is basically the same -- of a person who operates to get things done, make deals, find majorities, even negotiate. There is, as yet, not one sign of a person carrying the banner of revolution into government.
And that is what conservatives hate about her, realizing as they do that this is their last time via Bush to have a chance to employ the Supreme Court on behalf of their long-delayed hopes of revolution via the courts.
The Miers nomination is also another occasion on which to observe that this year's compromise, engineered by a bipartisan collection of 14 moderate senators, to end filibusters for the most part against Bush's appellate court nominees appears to be holding pretty firm. The White House was not a party to that compromise, as a Bush White House counsel named Harriet Miers went out of her way to explain, but there was an implicit commitment, and the Bushies are honoring it thus far. The most important element of the deal was consultation with senators of both parties before Bush made his choices for the bench.
The president did some of that before Roberts. And he did some of that before Miers. Moreover, on this latest occasion he appears to have received strong advice from several Democrats -- most notably Democratic leader Harry Reid of Nevada, that the choice of Miers would be viewed as a positive gesture. This will make opposition to her extremely difficult to mobilize on purely political grounds.
That leaves snobbery and charges of cronyism.
Miers's absence of judicial experience is easily ignored. The White House spin is correct in its historical reference to the 38 justices who arrived without having worn robes previously. To the White House citations of Rehnquist and the late Byron White (appointed by President Kennedy direct from the Justice Department), I would add the courtly big-time attorney from Richmond, Lewis Powell, whom Richard Nixon also put on the court. The fact is, qualifications are not an obstacle for her.
Neither is cronyism. Harriet Myers is no Michael Brown. She played major league ball as a lawyer in Dallas, and her service with Bush is a plus in terms of advertising her strengths, not a weakness.
The White House will undoubtedly try to keep much of her White House record from inspection, and the Democrats will undoubtedly try to get their hands on as much of it as possible. May the best side win. Meanwhile, Bush has appointed a sensible, loyal person whose nomination has deeply disturbed conservatives. These days, that's as good as it gets.
Correction: In last Tuesday's column, I misspelled the name of Aaron Copland.
Thomas Oliphant's e-mail address is firstname.lastname@example.org.