On October 3rd, President Bush announced the nomination of his longtime friend, White House Counsel Harriet Miers, as his nominee for the vacancy created by the departure of Supreme Court Justice Sandra Day O’Connor. Miers had been leading the White House effort to help Bush choose nominees to the Supreme Court.

Unlike recent Democrat presidential nominees Al Gore and John Kerry, who declared they would never nominate a pro-life Supreme Court justice, Bush has repeatedly indicated that he has no litmus test for his judicial nominees on abortion, implying a willingness to select judicial nominees who support the arguably murderous judicial precedent set by Roe v. Wade in 1973. On the day of Miers’ nomination, Dan Bartlett, counselor to President Bush, said that Bush had not asked Miers her views on issues like abortion or gay rights. "President Bush thinks it's very important not to impose a litmus test on judicial candidates," Bartlett said on NBC's Today show. So presumably based on that statement, President George W. Bush himself does not know if Miers is a social conservative or a social liberal, which casts doubt on his statement that she is a strict constructionist who will not legislate from the bench.

With his two Supreme Court nominees -- including a Chief Justice who appears to lack the late, great Chief Justice Rehnquist’s lifelong commitment to the pro-life cause and now an Associate Justice nominee whose views on social issues of great importance to conservatives like the right-to-life are a total blank slate -- President Bush has done what even his conservative doubters like myself failed to predict. He has moved the Supreme Court to the left. I had predicted that he would nominate one solid pro-life conservative and one “moderate” to the Supreme Court who would ultimately be exposed supporting legalized abortion, thus maintaining the current 6-3 balance between supporters and opponents of legalized abortion, a course of action argued by the likes of even an archliberal Senator Ted Kennedy (D-MA) only a few months ago.

Instead, President Bush nominated not one but two judicial moderates who enjoy wide bi-partisan support from liberal Democrats and are unlikely to ever vote to overturn the monstrous and extra-constitutional Supreme Court decision of Roe v. Wade, the landmark 1973 ruling legalizing abortion. Bush’s appointment of two non-controversial, Souter-like, largely blank slate Supreme Court nominees serves two purposes -- one obvious and one hidden. It has not only given his liberal opponents less ammo to oppose them with, but it has given his erstwhile conservative supporters, who otherwise might vehemently protest these moderate, non-ideological Supreme Court nominees, less ammo to oppose them as well.

Chief Justice John Roberts, whom we have been led to believe is a social conservative, told the Senate Judiciary Committee last month that Roe v. Wade was "settled as a precedent of the court entitled to respect under principles of stare decisis," the concept that long-settled decisions should be given extra weight. "There's nothing in my personal views based on faith or other sources that would prevent me from applying the precedent of the court faithfully under the principles of stare decisis," Roberts said. He added, "I do think the right to privacy (used by the Supreme Court to declare a constitutional right to have an abortion) is protected under the Constitution in various ways."

How could a pro-life conservative declare Roe v. Wade, which has cost the lives of over 46 million unborn babies since it was decided nearly 33 years ago -- amounting to one-third of all pregnancies since that time -- to be “settled law” which should be “respected?” Pro-life conservatives recognize these terms as code words used by the left to express their view that Roe v. Wade and the supposed “constitutional right” to abort America’s unborn children should never be overturned.  Neoconservative editorialist Charles Krauthammer, himself a supporter of legalized abortion, issued a prediction based on Roberts’ record and statements that, “Chief Justice Roberts will vote to uphold Roe v. Wade, and his replacing his former boss, Chief Justice William Rehnquist, will move the court only mildly, but most assuredly, to the left.” Accordingly, the nomination of Bush’s two Supreme Court nominees means that the disparity between opponents and supporters of legalized abortion which now dominate the Supreme Court will most likely be increased, not decreased.

Roberts was endorsed by the liberal Washington Post and supported by half of the Senate Democrats -- a feat that no true pro-life conservative would have been able to achieve in our extremely partisan times. Conservatives should have been concerned when pro-abortion Senators Arlen Specter (R-PA), Susan Collins (R-ME) and various Senate Democrats joined the editorial staff of the Washington Post in expressing their hope that Bush would choose another nominee “like Roberts” who was not “a conservative ideologue” (i.e. a pro-lifer who would vote to overturn Roe v. Wade). Roberts’ record was viewed as suspect by many social conservatives due to his legal work for homosexual rights, pornographers and a death row inmate, among others, not typically supported by social conservatives. In the first two above-mentioned cases, he actually helped change the law to the detriment of those who value family values.

Bush’s nomination of White House Counsel Harriet Miers was apparently pre-approved by Democratic leaders. The Associated Press reported Senate Minority Leader Harry Reid, (D-NV), had urged the administration to consider nominating her, two congressional officials said. Senator Reid is so liberal he voted against moderate Chief Justice Roberts while half of the Democrats in the United States Senate ultimately voted to approve his nomination. Senator Chuck Schumer (D-NY), a rabid pro-abortion liberal who also voted against Roberts, also had positive things to say about Miers. One of the reasons why Reid urged Bush to nominate her may be due to the fact that she contributed the maximum legal individual contribution to the 1988 campaigns of Al Gore for President, Lloyd Bentsen for Senator, and gave an additional $1,000 to the Democratic National Committee. This unprecedented Democrat pre-approval of President Bush’s nominee, the unusually high-level of Democrat support for Miers, and conservative opposition to her is almost enough to make one wonder whether she is Harry Reid’s and the Democrat’s nominee for the Supreme Court or George W. Bush’s.

The reason for widespread liberal Democrat support for Miers is beginning to become evident. According to an article published on October 3rd on WorldNetDaily.com, Miers is on record supporting homosexual adoptions and the establishment of the International Criminal Court while a leader of the American Bar Association, and women in combat and gays in the military during her tenure as White House Counsel. She also courted the support of the Lesbian/Gay Coalition of Dallas in her successful 1989 campaign for city council. In any case, given the fact that Miers' nomination appears to have been pre-approved by Senate Democrats, that she has a record of financially supporting prominent Democrats like Al Gore, not to mention the Democrat National Committee, and has taken many socially liberal positions, the chances that she would vote to overturn Roe v. Wade appear to be virtually nil.

Unlike Bush’s nomination of Roberts, which was met with widespread praise by both conservatives and liberals, his nomination of Miers to the Supreme Court has left conservatives “disappointed” and “demoralized” according to initial reports. While liberal Democrats like Senator Reid expressed support for the nomination of Miers, many conservatives expressed dismay. Most pro-life groups declared they lacked enough information about Miers to take a position for or against her. Eugene Delgaudio, the President of Public Advocate of the United States, a pro-life group, came out in strong opposition to Miers. Delgaudio declared, “The president's nomination of Miers is a betrayal of the conservative, pro-family voters whose support put Bush in the White House in both the 2000 and 2004 elections and who were promised Supreme Court appointments in the mold of Thomas and Scalia. Instead we were given 'stealth nominees,' who have never ruled on controversial issues, more in the mold of the disastrous choice of David Souter by this president's father.” Delgaudio further criticized Miers as having “no conservative credentials.” Another well-known pro-life group, Operation Rescue, also came out in opposition to Miers.

The Washington Times reported that, “In nominating counsel Harriet Miers to the crucial swing seat on the high court, the White House guaranteed itself a fight -- from its own base…Since the nomination early this morning, White House operatives have worked furiously to stem a growing revolt among grassroots conservatives.” In contrast to photos taken of his nomination of Roberts, where he could be seen beaming with confidence, President Bush appeared uncharacteristically uneasy in photos taken of him with Miers on the day of her nomination, almost as if he knew he may have made a mistake in nominating her. Significantly, Time magazine reported on the day of the Miers nomination that a Republican Senate aide remarked, “If there is a fight to be had, it will be from the right. The left has been disarmed." The same article stated, “A conservative backlash built against Bush's choice all day, and Vice President Cheney phoned in to Rush Limbaugh's radio show to try to reassure the faithful. Limbaugh's first question pointed to "a lot of concern" among Bush supporters, and said there was "disappointment out there" and that some of his backers felt "depressed," "let down," and "a little worn out having to appease the left on all these choices."” 

Following the announcement of Miers as his next Supreme Court nominee, Fox News interviewed former Democrat vice presidential nominee Geraldine Ferraro, who expressed support for Bush’s nominee and stated her view that she would be confirmed by the US Senate. Also interviewed was Republican commentator Linda Chavez, who reported that she had received many calls from conservatives who were “very disappointed” with Bush’s latest Supreme Court pick.

Bill Kristol, editor of the Weekly Standard, stated on October 3rd that conservatives are "pretty demoralized” over President Bush’s surprise nomination of Harriet Miers, who he declared “has no constitutionalist credentials that I know of.” In an interview with Fox News, Kristol noted that with liberal Republican Sandra Day O’Connor leaving the court, Bush had a unique opportunity to put his conservative stamp on the Supreme Court. Instead, Kristol stated that Bush "flinched” and that “it looks like he capitulated” to Democrat pressure to appoint someone more to their liking. Presumably that means a nominee who meets their litmus test of being if not an outright supporter of legalized abortion, someone who is unlikely to ever vote to overturn the Supreme Court decision, Roe v. Wade, which served to overturn the laws of all fifty states by legalizing it over three decades ago. The conservative commentator noted she has absolutely no judicial record from which we may determine her stands on important social issues and expressed his fears she will be "another O’Connor, another Souter.” Kristol further stated that he viewed Bush’s pick of Miers as a slap in the face to conservative women jurists who have a public record of support for social conservatism. Radio talk show host Tammy Bruce concluded that the Miers nomination proved that “Bush is no conservative.”

Given this initial response from conservatives on Bush’s latest Supreme Court pick, it seems likely that Bush’s honeymoon with pro-life conservatives may finally be coming to an end as they realize that he failed to keep his promise to appoint social conservatives to the Supreme Court.

It seems clear that the reason the President selected more moderate rather than pro-life conservative nominees to the Supreme Court was because he was determined to avoid a contentious fight in the Senate due to his falling poll numbers. This despite the fact that such a fight would likely have served to shore up his sagging poll numbers by solidifying the support of his conservative base and rallying them to turn out in the important congressional elections next fall.

It is very unfortunate that President Bush apparently decided to forgo the greatest opportunity in a generation to move the court to the right -- within one vote of overturning Roe. v. Wade -- with the benefit of a strong Republican majority in the Senate, which may disappear as early as next year. Due to his failure to support the pro-life cause and stand with his pro-life conservative supporters, it seems likely that a Supreme Court decision overturning Roe. v. Wade will not be a possibility in this generation if ever. That will certainly be an integral part of Bush’s presidential legacy, which at this point is looking increasingly dismal for conservatives. It is ironic that President Bush appears to have chosen to disappoint, demoralize and arguably betray his pro-life conservative base on October 3rd, a day which Judie Brown, President of the American Life League (ALL), perhaps the most ardently pro-life organization in the country, had proclaimed as Pro-Life Memorial Day -- a day on which pro-lifers memorialize the 46 million unborn American babies who were never permitted to exercise their God-given right to life. 

There has been increasing conservative unrest stemming from Bush’s proposal to amnesty millions of illegal immigrants, his failure to veto even one liberal spending bill in nearly five years of being President, and his budget breaking proposal to provide $200 billion in federal aid help rebuild New Orleans. Together with tens of billions of dollars budgeted for the badly mismanaged war in Iraq, this threatens to increase next year’s federal budget deficit to half a trillion dollars. In response to the demoralization he and many conservatives have felt in response to the Miers nomination, Bill Kristol posed the question, “What are the prospects for holding solid GOP majorities in Congress in 2006 if conservatives are demoralized?” This is the important issue we need to be asking. Bush’s latest betrayal of conservatives may spell trouble for Republican efforts to retain their hard-won majority in both houses of Congress in next fall’s election by depressing the turnout of the GOP’s conservative base without which it cannot win elections.

David T. Pyne, Esq. is President of the Center for the National Security Interest, a national security think-tank based in Arlington, VA.

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