CBS News legal analyst, Andrew Cohen, today relays a conspiracy theory some have cooked up regarding the Miers nomination: Miers was never intended to sit on the Court, but rather to be a "sacrificial lamb" whose botched nomination would make it harder for liberals to sink her more conservative replacement.Cohen himself finds the notion "only mildly paranoid when you think about it," adding:
Can this be? Why not. Anyone who has read those suck-up notes that Miers wrote to President Bush (they’ve been published and posted everywhere, in case you are wondering) wouldn’t have too hard a time believing that she would be wiling to sacrifice her own professional reputation for all eternity to further the political goals of the man to whom she has long hitched her star.And I’m not willing to blame the president even if this Machiavellian scenario is true; it’s quite conceivable that Miers herself volunteered to take the hit for the team. If we learned anything about her during her aborted confirmation process — apart from the fact that she doesn’t know enough about constitutional law to be a Supreme Court Justice — we learned that she is a team player.We’ll know if this dark theory is true as soon as the president announces his next choice to replace the retiring Associate Justice Sandra Day O’Connor, who must be screaming into her robe these days as she sees pass by another opportunity to leave the bench.
What's more, Cohen warns that if the President actually picks a strong conservative jurist in Miers's place, that it only bolsters the conspiracy theory:
If the president picks a doctrinal conservative to replace Miers, the theory will gain some traction. If he picks a more centrist jurist to replace the centrist O’Connor the theory will fall apart. If he picks a conservative candidate in the mold of Justice Antonin Scalia, Democrats will howl that the pick is a paean to the Republican right. If he picks a more moderate choice Republicans will howl, as they did with Miers in spite of her anti-abortion views, that the president is acting wobbly when he should be most strong.
Cohen does bring it back down to earth in his closing. After offering up Judge Edith Clement and a few others as "just a few of the less controversial" justice picks for the nomination, Cohen says the confirmation fight would focus on substantial issues of legal philosophy, and in the process be a knock-down, drag-out fight:
We will see a fight on the merits instead of a fight over process; a fight where the issues that doomed Miers are stipulated as resolved by all concerned.For Round Three of the Battle of the Judges we are likely, finally, to see the ugly, nasty, brutal, scorched-earth showdown that’s been predicted for the past half year. Sen. Arlen Specter doesn’t like how Miers was treated? Wait until he sees what happens to her successor nominee.