The New York Times asks this question in its Sunday edition after the rejection of Harriet Miers as a Supreme Court nominee. The Bush administration has signaled that it will announce its replacement for the seat opened up by Sandra Day O'Connor's retirement, and the Times wonders what kind of nominee will satisfy the conservatives who objected so strenuously to Miers -- and whether such a nominee can find confirmation in the Senate:

In his two choices for the Supreme Court so far, President Bush has tapped what some conservatives called "stealth" nominees: jurists without a clear record of legal opinions on abortion rights or other contentious social issues.

But with the announcement of a third nominee to succeed Justice Sandra Day O'Connor expected as early as Monday, prominent conservatives said they were confident that this time would be different. They argued that the reaction against the nomination of Harriet E. Miers had proven the perils of such an approach, even though some also acknowledged that the failure of the Miers nomination may have weakened the president if the next nominee sets off a battle.

"To the degree that Bush was enamored of a stealth strategy, I have got to believe he has learned there is a real downside," said William Kristol, editor of The Weekly Standard and one of the first conservative thinkers to call for withdrawal of the Miers nomination.

But if the next nominee provokes a fight with the left instead, Mr. Kristol added, "it is tougher having made a mistake with Miers."

Elisabeth Bumiller makes the common mistake coming from most media outlets. Conservatives haven't asked for a consistent record opposing abortion or demanding a reversal of Roe v Wade, although I suppose either would delight most of us. What we have first asked and lately demanded are candidates that have a public record of originalist scholarship or jurisprudence, justices who not only will vote conservatively but push the transformation of the Supreme Court from its current status of a superlegislature to that of an arbiter of the Constitutionality of actions taken by the Legislature, Executive, and lower courts -- based on the actual text of the Constitution and nothing else.

We want candidates who understand that the Supreme Court, or any other court, did not spring into existence to tell legislatures that they have to legalize gay marriages. We hope to find nominees who have publicly demonstrated a commitment to separation of powers, either by way of scholarly writings, jurisprudence, or a long history of legal work. Furthermore, we want a Republican president and a Republican Senate to quit feeding into a perception that this represents some fringe thinking, instead of a return to the original use of the judiciary as intended by the framers of the Constitution. That means that we find stealth candidates utterly inappropriate, given that Republicans control the White House and the Senate and both were won on the basis of an election in which this issue received plenty of debate on both sides.

We won the election and increased the GOP majority in the Senate based in large part on that issue. That shows a mandate for change.

For those who argue that the Senate GOP does not have the will to confirm such candidates, that may unfortunately be true. It has nothing to do with the Democrats, however. The GOP has all the tools it needs to confirm anyone they want; if the Democrats want to abuse the filibuster yet again, this time on an eminently qualified and scholarly Supreme Court nominee, the GOP can eliminate the use of teh filibuster with little effort.

If the so-called Gang of Fourteen wants to stall that option, we need to remind them of their commitment to presidential prerogative on highly qualified candidates during Bill Clinton's term -- and Ruth Bader Ginsburg supplies us with the perfect example. Ginsburg had impeccable credentials as a scholar and an attorney; she had practiced law and written many treatises on her view of Constitutional law. Her views coincided nicely with the elected President of that time, Clinton, and he exercised his prerogative in nominating her. The GOP helped confirm her to the bench, despite her rather extreme liberal viewpoint, on the basis of her clearly sufficient scholarship and understanding of the law.

Of the present Gang of 14 Republicans, the vote went as follows:

Lincoln Chaffee: Yea
John McCain: Yea
John Warner: Yea

Olympia Snowe, Susan Collins, Mike DeWine, and Lindsay Graham did not hold seats in the Senate at the time. Other so-called squishes in today's upper chamber did, including Chuck Grassley and Arlen Specter. If these men could vote for Ruth Bader Ginsburg on the basis of Clinton's prerogative, then they had better find themselves capable of defending it for a J. Michael Luttig or Samuel Alito, or even Janice Rogers Brown.

(Before anyone starts arguing about Presidential prerogative and Harriet Miers, I'll remind you that that was the only basis on which I supported her nomination until the speeches came out. After that, my first and primary objection to her focused on her lack of scholarship and apparent mediocrity in expressing herself, along with an almost-complete lack of any record of public thought on Constitutional law and philosophy. Even then, I had no problem with her getting her hearing and up-or-down vote, but opposed her confirmation and thought that a withdrawal made much better political sense.)

Given the names floating out from the White House this time around, I'm a lot more confident that the administration now understands what the Right wants. The Times just hasn't been listening, a problem that we resolved with the Bush administration earlier.

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