Presidents despise losing. But as the song says, "ev'ry gambler knows that the secret to survival, is knowin' what to throw away and knowin' what to keep."

Harriet Miers' inability to be confirmed as a Supreme Court Justice does not make her unique. Even the Father of our Country, George Washington, saw his choice for Chief Justice rejected by the Senate in 1795. Roughly one in four nominees to the Supreme Court fail to reach that lofty bench.

What this means is that those who fear that President Bush has been somehow harmed by conservative opposition to Miers can relax. The White House has merely been reminded that it should not ignore the concerns of its conservative base.

There were threats conveyed. Miers backers spread the word, according to Newsweek that to oppose Miers would doom the chances of Senators George Allen and Sam Brownback in the New Hampshire Presidential primary. Rev. Pat Robertson used his 700 Club broadcast to pronounce a fatwaagainst those who dared oppose Miers:

These so-called movement conservatives don't have much of a following, the ones that I'm aware of. And you just marvel, these are the senators, some of them who voted to confirm the general counsel of the ACLU to the Supreme Court, and she was voted in almost unanimously. And you say, "now they're going to turn against a Christian who is a conservative picked by a conservative President and they're going to vote against her for confirmation?" Not on your sweet life, if they want to stay in office.

When the Washington Post posted Harriet Miers' 1993 speech to the Executive Women of Dallas on the morning of October 26th, this stealth nominee stood revealed as well to the left of most Republicans and a good many Democrats. Ramesh Ponnuru said it best:

The argument [Miers] makes is that the courts can't be blamed when they are forced to step in to resolve problems that elected officials have failed to resolve (e.g., the problems of school funding and low-income housing siting). That is a very standard argument, usually associated with liberals. ...

But it's hard to see how the courts are to distinguish between a) a legislative "failure to act," b) a legislative decision that there is no problem demanding solution, or c) a legislative decision that solving any problem would create new and greater problems. Any act of judicial usurpation can be described as a reluctant response to the legislature's failure to enact what the judges wanted them to enact."

Miers wrote: "The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion." This tendentious framing of what is at issue in the abortion debate — and its utter obscuring of the appropriate roles of the courts and the political branches — would appear to come straight from Planned Parenthood.

One excerpt from Harriet Miers' 1993 speech merited more attention from fiscal conservatives:

Another example, school financing. The funding system in Texas is unacceptable. There were schools which could not operate because the community had [an] insufficient tax base to raise money sufficient to support a worthwhile [sic] public education system. ... No one would deal with this issue until the Court is [sic] presented with facts which cannot be ignored. ... No one wants to deal with the hard question of a state income tax. ... Now we have to face the reality ..... [sic] the need for a statewide, equitable, efficient source of funds for public education.

Federal judges have the means to bring their most grandiose social-engineering schemes to fruition, thanks to the Supreme Court's 1990 ruling in Missouri v. Jenkins (495 U.S. 33) which sanctioned court-ordered tax increases.

Miers and Official English

Presidents are generally good at picking Supreme Court Justices who will rule "the right way" on the hot issues of the day. Nixon's choices voted to curtail the rights of criminal defendants, just as he hoped. But it is unlikely that the subject of abortion ever came up during its vetting of Justice Harry Blackmun, the man who would write the Roe v. Wade opinion.

Justice Sandra Day O'Connor was the deciding vote in a 5-4 Supreme Court decision, Alexander v. Sandoval, which rejected a lower court's ruling that Alabama's official English law was unconstitutional.

Miers' written work suggests she would have voted with the ant-English four. Miers complained in her October 1992 Texas Bar Journal column, "Inclusion, Education and Mentoring," that: "a burden is often placed on Spanish-speaking lawyers to assist in pro bono cases involving the poor who speak only Spanish."

Language activist and attorney Bill Piatt took up this same issue in his 1990 book, Only English? Piatt argued that "to protect the interest of a client who speaks no English, an attorney should have his or her own interpreter in addition to the court interpreter."

The 21st Century Supreme Court is likely to face a fair number of "language rights" questions. It would be a stretch to assume that Miers would defy elite opinion and cast a deciding vote for official English.

To Meet Miers Was to Wonder More About Her

Miers was hardly wowing Senators during her personal visits. Senator David Vitter (R-LA) issued a press release On Oct. 26th, stating: "My central question still remains to be answered, however: Is there objective, written evidence from prior to her nomination that fully shows that she has a truly consistent and well-grounded conservative judicial philosophy?"

Her Committee questionnaire answers were so evasive that the Committee ordered her to try again. Many key questions which could have given Senators some idea of the nominee's approach were not answered.

My own article on Miers' worrisome American Bar Association connections ran in National Review Online on Monday of this week. (You can read it for yourself here.)

Wednesday Evening

Congressional Quarterly reports that Senate Republican leaders met for dinner last night and shared their candid opinions on the chances of the Miers' nomination. It was left to Senator Frist to tell President Bush that Miers just didn't have enough Republican votes to be confirmed.

(It was also possible that the 45 Senate Democrats would vote for Miers on the basis that she would be the best nominee they were likely to get, meaning only six Republican votes would be needed to confirm her. The spectacle of a Republican Supreme Court nominee embraced by Democrats while being rejected by Republicans had to send a shiver down a few White House spines.)

Leonard A. Leo, who had been on leave from the Federalist Society to be chief conduit between the White House and conservatives, announced that same night that he would return to his full-time job as executive vice president of the conservative legal group.

Now What?

In the end, the only friend Harriet Miers had left in her corner was George W. Bush. Had President Bush still been serving his first term, that might have been clout enough. Miers certainly seemed to think so.

But a lame-duck president with 38 months left in his term is no longer quite the king of the Washington jungle. (Of course, a first-term President Bush would be less likely to insult his conservative base by nominating Miers in the first place.)

Miers will go on to write a book and perhaps enjoy an ambassadorship to a country where the weather is pleasant and the revolutions few. Or perhaps she will be rewarded for a decade of fawning notes to "the most brilliant man" she ever met with a federal judgeship. Miers wouldn't be the first person to receive a choice political appointment based upon whom, rather than what, she knew.

There are plenty of Executive Branch posts for Presidents to park deserving loyalists. President Andrew Jackson allegedly suggested that any job that could not be filled by a good Democrat didn't need filling.

But the Supreme Court is not the Department of Commerce in the eyes of most people. They want to see someone named to our nation's highest court with some credentials in addition to his or her Christmas card list.

President Bush, it is hoped, will nominate someone recognizably conservative for the O'Connor seat in short order. Once that person is on the bench, the intensity of the battle for the Supreme Court in October, 2005, will fade.

--Prepared at 4:00 PM on October 27, 2005