I think I'm ready to agree with Will Baude's early assessment that Harriet Miers will be confirmed. Both sides have incentives to see her confirmed, and more importantly both sides have significant incentives not to see her withdrawn or rejected.
The Republicans can't afford to let the Bush admin lose its ability to function over the next three years, which is exactly what would happen if the president were to lose this battle, by either withdrawing the appointment or simply losing the committee or floor vote. The president's ability to govern over the past five years has been based on a certain perception among the public about his personal qualities, the most important of which is his steadfast resolve in the face of various obstacles. Politically, this is why he can never withdraw troops from Iraq, and it's also why he can't withdraw Miers's name now. The result would be a grievous political wound that would cut right to the heart of who Bush is, damaging both his agenda for the next three years and his legacy. And of course, if the Republicans reject Miers anyway, they will have completely emasculated their own sitting president, and they'll be easy pickings in 2006.
But there's also danger here for the Democrats. If Miers is not confirmed, it will be the result of a bloodbath for the GOP, but the winning side will certainly put forward a nominee impossible for the Democrats to stomach. They will then have the choice between accepting the nominee anyway, which will only serve to marginalize the party further, or resorting to the filibuster, which will probably force the weakened GOP to exercize that nuclear option. And of course the result in either case is a much more more conservative court.
I suppose from a strictly political perspective the decision tree is all about figuring out whose medicine is worse here, but I think there's enough uncertainty on both sides here to make a Miers withdrawl/rejection pretty unlikely.
Do you think the Republican's poor prospects for 2006 elections will restrain the use of a nuclear option in the event of a filibuster or are they deep into lemming-land?
No, I think if Bush is weak enough that his nominee can get defeated by his own party, the Republicans will be in a position where they have to use the nuclear option just to save face. I can't imagine a second pick getting successfully filibustered -- it would be too much of a fiasco.
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