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Jewish World Review Oct. 31, 2005 / 28 Tishrei 5766

John H. Fund

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Internet Rules: The Miers denouncement shows the power of the new media | 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.

But the role of the Supreme Court has changed since then. Many Americans now view it as a kind of superlegislature, micromanaging the abortion laws of 50 states, declaring state ballot measures invalid, and redefining the powers of eminent domain. So long as the court wields that much power, battles for each vacancy  —  the only opportunity Americans have to influence the direction of the courts  —  will be intense and divisive.

Establishment figures on both sides tend to focus on the symptom of rancorous nomination fights rather than the underlying cause: a judiciary that too often short-circuits democratic debate and directs ideological heat on itself. Sen. John Warner of Virginia, a Republican, huffs that Ms. Miers was "denied due process." Former Attorney General Richard Thornburgh, a Republican, laments that the Miers controversy empowered "the bloggers and pundits far beyond the president and the Senate, which should be the ones that decide on the suitability" of a nominee.

While only a small minority of Americans read political blogs, they tend to attract high-profile readers in media and politics with nonstop access to a computer. Such people influence the influencers. "The Internet processed all the arguments for Miers in record time and rejected them," says Rich Lowry, editor of National Review. "A few days before the Miers withdrawal her supporters had nothing left to say."

Liberals, who were largely bystanders during the conservative family feud over Ms. Miers, are now stepping forward to tar her critics as Grand Inquisitors. "The radical right wing of the Republican Party drove this woman's nomination right out of town," thundered Senate Minority Leader Harry Reid. Juan Williams, a National Public Radio and Fox News analyst, compared her critics to "a far-right Donner party. They're eating their own."

In fact, the conservative critique of the Miers nomination contained almost none of the bitter invective that characterized the liberal assault on Robert Bork in 1987. Back then, Sen. Ted Kennedy set the tone of the attacks within two hours of Mr. Bork's nomination, when he charged that "Robert Bork's America is a land in which women would be forced into back-alley abortions, blacks would sit at segregated lunch counters, and rogue police would break down citizens' doors in midnight raids."

In contrast, Miers critics routinely stipulated she was a good corporate litigator, a path-breaking legal talent and a good person. They emphasized two basic points: She didn't have the background for such an important appointment, and her judicial philosophy, when not unknown, was incoherent. It was the White House that suggested her opponents might be operating from "sexist" or "elitist" motives and that a knowledge of constitutional law wasn't a prerequisite for service on the high court.

The Miers nomination vividly illustrates how the political battlefield has changed, from the artillery barrages of the Bork battle to the blitzkrieg tactics of today. Back in 1987, when President Reagan nominated Judge Bork, Rush Limbaugh's nationally syndicated program, the Drudge Report, instantly updated newspaper Internet sites, competing cable-news channels and e-mail message blasts didn't exist.

Now both political parties can find themselves under siege  —  and sometimes even held hostage  —  to outside forces that bear little resemblance to traditional special interest groups. Peter Beinart, editor of the liberal New Republic, lamented last week in a speech at Harvard that and other manifestations of "the new liberal political culture emerging on the Internet" resemble the forces that backed George McGovern in 1972. They captured the Democratic Party and lost 49 states and four of the next five presidential elections.

Meanwhile, President Bush has a new appreciation for the power of the conservative movement, which rose up en masse to challenge the Miers nomination. "The Bush White House will never again be able to count on conservatives following the dictum, 'Our leader, right or left,' " says Phyllis Schlafly, who heads the influential Eagle Forum.

Al Regnery, the publisher of The American Spectator, says the Miers nomination could become a galvanizing event for the conservative movement similar to the stand that sent Barry Goldwater on his journey to remake the Republican Party. In April 1957, Goldwater gave a Senate floor speech attacking President Eisenhower's conception of "modern Republicanism," as something resembling "a dime-store New Deal." In an echo of today's conservative complaints about the spending excesses of the Bush White House, Goldwater warned that Ike's "big budget concept" would subvert the American economy. "That speech led to Goldwater's 1964 candidacy and thus to Ronald Reagan's famous speech that year," says Mr. Regnery, who is writing a book on conservatism's past 50 years.

While the power of the technological forces that helped doom the Miers nomination may give cheer to both liberals and conservatives seeking to head off ideological drift by Washington political leaders, the intensity they can generate also carries the danger of blowing up legislative compromises on such matters as Social Security and stem-cell research.

"The moral hazard of the new media is clear," says columnist Jim Pinkerton, an aide to President George H.W. Bush. "They can turn any discussion into a donnybrook, and any nomination into Armageddon." Such a development isn't inevitable  —  witness the civilized debate over John Roberts's appointment. But President Bush will have to consider that risk in picking a new nominee for the high court, just as Democratic senators will have to weigh how much they respond to Internet sites pressuring them to mount a filibuster against that nominee.

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JWR contributor John H. Fund is author, most recently, of "Stealing Elections: How Voter Fraud Threatens Our Democracy". (Click HERE to purchase. Sales help fund JWR.)

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©2001, John H. Fund