Informed Speculation

Some days back I posted about the comment by John Fund of the Wall Street Journal that 6 or 7 surprises were in store for the Harriet Miers nomination. Surprise number one is unveiled today:

On Oct. 3, the day the Miers nomination was announced, [James] Dobson and other religious conservatives held a conference call to discuss the nomination…The call was moderated by the Rev. Donald Wildmon of the American Family Association. Participating were 13 members of the executive committee of the Arlington Group, an umbrella alliance of 60 religious conservative groups, including Gary Bauer of American Values, Richard Land of the Southern Baptist Convention, Tony Perkins of the Family Research Council, Paul Weyrich of the Free Congress Foundation and the Rev. Bill Owens, a black minister. Also on the call were Justice Nathan Hecht of the Texas Supreme Court and Judge Ed Kinkeade, a Dallas-based federal trial judge.

…What followed, according to the notes [obtained by Mr. Fund from one of the participants), was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, “Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?”

“Absolutely,” said Judge Kinkeade.

“I agree with that,” said Justice Hecht. “I concur.”

…The benign interpretation of the comments is that the two judges were speaking on behalf of themselves, not Ms. Miers or the White House, and they were therefore offering a prediction, not an assurance, about how she would come down on Roe v. Wade. But the people I interviewed who were on the call took the comments as an assurance, and at least one based his support for Ms. Miers on them.

Fund believes this further dooms a nomination already in peril:

Some participants in the Oct. 3 conference call fear that they will be called to testify at Ms. Miers’s hearings. “If the call is as you describe it, an effort will be made to subpoena everyone on it,” a Judiciary Committee staffer told me. It is possible that a tape or notes of the call are already in the hands of committee staffers. “Some people were on speaker phones allowing other people to listen in, and others could have been on extensions,” one participant told me.

Should hearings begin on Nov. 7 as is now tentatively planned, they would likely turn into a spectacle. Mr. Specter has said he plans to press Ms. Miers “very hard” on whether Roe v. Wade is settled law. “She will have hearings like no nominee has ever had to sit through,” Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor. “One slipup on camera and she is toast.”

Should she survive the hearings, liberal groups may demand that Democrats filibuster her. Republican senators, already hesitant to back Ms. Miers after heavy blowback from their conservative base, would likely lack the will to trigger the so-called nuclear option. “The nomination is in real trouble,” one GOP senator told me. “Not one senator wants to go through the agony of those hearings, even those who want to vote for her.” Even if Ms. Miers avoids a filibuster, it’s possible Democrats would join with dissident Republicans to defeat her outright.

What’s the significance, then? In reality, the call is practically meaningless: the opinion of two friends that the conservative, pro-life, ‘evangelical’ Christian would vote to overturn Roe vs. Wade. This is hearsay, and there is no way to confirm the truth of the statements.

In the world of political perception, though, the revelation is somewhat damaging (though I don’t believe it dooms the nomination). It certainly gives cover to the Left to oppose the nomination, perhaps even providing an out for Harry Reid and other Democrats who have indicated they may support Miers. More to the point: I keep hearing the Miers nomination is in deep trouble from people who oppose it. I see no indication that President Bush will ask her to withdraw. Until a prominent Republican or two comes out with an outright statement of opposition, I continue to give Miers an even chance of making it through.