Before the Alito slugfest kicks into high gear, it's worth taking a step back and considering how the failure of the Miers nomination will shape the future of the Court.
Two points stand out. First, as William J. Stuntz argued on The New Republic Online, "Harriet Miers is to the Supreme Court what Dan Quayle was to the vice presidency: a sign of rising standards." Samuel Alito is an experienced judge and prosecutor, and it's hard to imagine any president nominating another unqualified crony in the future.
Second, early opposition to the nominee may be key, particularly now that new media makes it possible for opposition to coalesce quickly, as John Fund argues today:
As President Bush prepares to make a new appointment to the Supreme Court, the lessons of the failed Miers nomination are still being absorbed.
One that deserves study is how a lightning-fast news cycle, a flat-footed defense and the growth of new media such as talk radio and blogs sank Ms. Miers's chances even before the megabuck special-interest groups could unload their first TV ad. Ms. Miers herself has told friends that she was astonished at how the Internet became a conveyor belt for skeptical mainstream media reports on her in addition to helping drive the debate.
The rapidity with which Supreme Court nominations can become full-scale political contests would astonish previous generations. While one out of five previous nominees to the highest court failed to be confirmed, the battles used to be far more gentle. Nominees didn't even show up at confirmation hearings until 1925.
I'm thinking about studying court nominations as a classic kind of positive feedback coordination game in which opposition must reach critical mass to overcome the norm of senatorial deference to executive branch nominees. In the past, nominees have (I think) generally been defeated at the committee stage after a long process of written submissions and oral testimony. Now, however, it's possible to mount a strong defense very early in the process.
We have to be careful, though, not to exaggerate the importance of the Internet and other new media. The fundamentals remain key. Miers needed enough votes to pass the Senate, and she didn't have them. In addition, President Bush has an approval rating in the low 40s and needs conservative support after the indictment of Scooter Libby. So it makes sense that she was pulled.
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