Code blue.

Code blue.

Code blue.

The law, lawyers, and the court.
Oct. 27 2005 1:52 PM

Code Blue

What the Miers withdrawal means for abortion code-speak.

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The epitaph for Harriet Miers' failed bid to be an associate justice on the U.S. Supreme Court should go like this:

Here lies the nomination of Harriet Miers
Oct. 3, 2005 - Oct. 27 2005
With her died the ability to speak about Roe in code

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate and hosts the podcast Amicus.

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The Miers nomination went off the rails about seven seconds after it was announced, in large part because President Bush tried to mollify his base in code. The nominee had no background or record as a movement conservative and no written promises to be the kind of right-wing activist who would spearhead a Supreme Court counterrevolution. What she had—according to the president—was a "good heart." She was a religious person and she was loyal to him. That, Bush thought, would suffice to assure everyone that she had it in for Roe v. Wade.

But it didn't suffice, because movement conservatives weren't willing to settle for a coded message anymore. They have built up a strong and capable stable of thinkers and jurists who are not speaking in half-promises or symbols. And they wanted a nominee with the brains and brawn to overturn Roe because it's bad law rather than just because it's "a sin." The code also didn't suffice because the right had heard the same coded promises about Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter—and had dejectedly watched them go on to uphold Roe. Sick and tired of ambiguous messages and middle-of-the-road nominees, they would not be placated by anyone who wasn't willing to say, as are Janice Rodgers Brown or Priscilla Owen or Edith Jones, that Roe must die now.

John Roberts was the last wink, or coded nominee, the far right will ever accept. Not because he won't prove to be as conservative as they hope. But because they held their fire on Roberts as a quid pro quo; they were assured that an Owen or a Michael Luttig would be their payback for that acquiescence. Bush's base never loved Roberts. They worried about his moderation and his caution and they worried about his possible softness on gay rights after it became clear that he'd been on the wrong side of Romer v. Evans—the 1996 gay-rights case out of Colorado. The outrage you saw over Miers was the outrage of a promise broken.

The vociferous demands by both Democrats and Republicans in the Senate to see Miers' work product from her time as White House Counsel reveal that coded messages are not doing it for either side anymore. The same GOP senators who would have fought to the death to keep John Roberts' work product secret were clamoring louder than anyone to see Miers'. Both sides needed to see tangible evidence of what she would do in the future because the currency of the wink died with Roberts.

It's going to be easy to panic and argue—as all the interest groups are already doing—that the Miers nomination represents a capitulation by the embattled Bush administration to the far right. But that's an overreading. Certainly pundits and activists from Bush's base lit the first fires under this nomination. But over the intervening weeks, Miers did herself in. She gave nobody a reason to support her. Instead of offering something for everyone, Miers offered nothing to anyone.

It will be a shame if Bush's capitulation to basic common sense is spun merely as a capitulation to his base. The real story is not necessarily that the far right is driving the bus. It's that movement conservatives won't ever again accept anyone who hasn't promised outright and on paper that they support the base's political agenda. That may prove a big win for the base; but only if Bush is content to be perceived as their water boy for the next three years. In either case, it's a big win for honesty, and that may be, in the end, a good thing.