Are you unhappy with the Harriet Miers nomination to the Supreme Court? If so, blame the weak-kneed, cowardly, Republican-controlled Senate, not President Bush.

First of all, let me state that I support Miers’ nomination. The George will column today makes clear his belief that only an elite few are capable of interpreting the constitution and, for some reason which he never really states, Miers does not belong in that club. That is nonsense, of course — the Constitution is not some sort of rarefied Gnostic writing that only the initiated can understand. It is a simple, succint document that any decently intelligent person can sort through and apply to real-world situations. We have had too much constitutional voodoo over the years with the Supreme Court finding all sorts of emanations and penumbras that would make the Founding Fathers slap their heads. Miers has real-world experience running a major law firm, sitting on the Dallas City Council, and overseeing the Texas Lottery that gives her a different view of reality than any Supreme Court nominee since Rehnquist. For that reason, if for nothing else, conservatives should support Miers.

Unfortunately, there is an influential mass of conservatives who are upset that Bush did not choose a fire-breathing conservative with extensive right-wing credentials like Michael Luttig, Janice Rogers Brown, or even Priscilla Owen. The real reason for Bush’s apparent shying away from such a controversial nominee, as pointed out Tapscott’s Copy Desk and others, is not that he lacks the guts to fight, but rather that the Senate GOP leadership has their dresses over their heads and refuses to fight the Democrats over a filibuster.

Filibusters are ostensibly used to foster substantive debate, but in recent years they have been used by the Democrats (and, to be fair, very occasionally by the Republicans) to completely stifle debate and prevent a bill or candidate from receiving a fair up-and-down vote. Current Senate rules make it possible to end a filibuster with a vote of 60 senators. In practice, that means that 41 of the Senate’s 100 senators can sustain a filibuster indefinitely and thus block any bill or presidential appointment that they dislike. Many Republicans would like to change the Senate’s rules so that the Senate would need only a simple majority — 51 votes — to end a filibuster and force a vote. There are curently 55 Republicans in the Senate but many of them are RINOs (Republicans In Name Only).

It should be noted that the Constitution’s framers rejected the notion that anything more than a simple majority is required for the the daily business of the Senate.

“He [The President] shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law…”

What the Democrats have done is effectively transfer control of the Senate to the minority. If the Democrats can muster 41 votes to sustain a filibuster, then they can block the appointment of a Supreme Court nominee.

The Republicans have what they call a “Constitutional Option” (the Democrats call it the “Nuclear Option”) whereby they could remove the filibuster rule from the Senate with a few procedural actions and a simple up-and-down vote of the majority. Unfortunately, there is a significant group of Republicans who lack the courage to do such a thing. When Senate Majority leader Bill Frist threatened the Constitutional Option last spring, a “Gang of 14” Republicans and Democrats was formed and hammered out a deal allowing up-and-down votes on the appointments of Janice Rogers Brown, Priscilla Owen, and Bill Pryor to various Circuit Court seats and gave thumbs down to other candidates. The agreement stated that future “nominees should only be filibustered under extraordinary circumstances” (of course, it’s the Democrats who decide what constitutes an extraordinary circumstance) and that each senator can use “his or her own discretion and judgment” in deciding whether to filibuster. Gang of 14 member Ken Salazar has already stated that he would filibuster “the president appoints someone who brings a right-wing ideology and is going to use the court to advance their views.” The radical Democrat base is already angry that the Democrats failed to put up a serious fight against John Roberts and Howard Dean recently told the Washington Post that “party ‘absolutely’ should be prepared to filibuster — holding unlimited debate and preventing an up-or-down vote — Bush’s next high court nominee, if he taps someone they find unacceptably ideological.”

It all boils down to this:  First, the Republican leadership ceded control of the Senate to 41 Democrats. Then, last spring, they effectively ceded control of the Senate to a group of 14 people. President Bush has good reason for not trusting the Republican leadership to do its job and force a simple majority vote on his nominees. Appointing a fully-credentialed conservative nominee would be like going into battle and having to depend on the French to win it for you.

Bush is not afraid of a fight. The first thing that he did after the Gang of 14 made its agreement was to re-submit the names of 10 nominees whom the Democrats had previously filibustered. Plus, he made John Bolton the recess appointment as United Nations Ambassador when the Senate was out of session. Previously, the Democrats had threatened to filibuster Bolton.

The simple fact is that until the Senate Republican leadership does its job and returns the Senate to a majority rule, Bush will be forced to nominate stealth candidates for high positions. Conservatives are mostly happy with Roberts because he has such sterling credentials but, the truth is that we really do not know where he stands on such hot-button issues as abortion. We probably know, but he may end up being one of those who are personally against Roe v. Wade but will not vote to overturn it. The same thing goes for Harriet Miers. She has had an extremely successful career by any measure yet one of the reasons for Bush nominating her is that she has no paper trail or official public opposition to abortion.

I am happy with Harriet Miers because, to those of us who are politically and religiously active in Dallas, she is not an unknown quantity. She has proved herself to be a capable leader and extremely competent attorney who has important consensus-building skills (something that Scalia and Thomas unfortunately lack). However, if anyone is not happy with Bush’s choice, they need to look no further than the Republican Senate leadership to see where the blame lies. This is all about having power but refusing to use it. If the Republican Senate leadership is going to allow itself to be run by a mere 14 members, then perhaps we need new leadership.