Last week I left you with what I considered to be a "wait and see" attitude on Harriet Miers' nomination. This past week conservative opposition to her nomination grew and echoed through talk radio. The Weekly Standard's own poll was running 2/3's opposed, 1/3 supporting. Meanwhile President Bush reiterated his support for Ms. Miers and indicated he would not withdraw the nomination. It looks like unless a cadre of Republican Senators start opposing the nomination, it will move forward to Senate consideration.

 One has to feel for Harriet Miers just now. Here is a very accomplished woman who is caught in a buzz saw not of her own making. She possesses a distinguished career of accomplishment and service, both in Texas and in Washington D.C. and people who know her must feel badly that she has to endure this heated opposition. However, this nomination is more about the context of the moment and the Bush Presidency than it is about Harriet Miers.

 Let me explain. It is the context, so heavy with controversy for conservatives, that President Bush has failed to grasp and appreciate. Conservatives remember Roe vs. Wade as a legal travesty, just as much as a social evil. They remember Robert Bork and Clarence Thomas before the Senate. Conservatives wince over David Souter who sits on the court as a reminder of past mistakes. Conservatives tapped their feet impatiently as President Clinton added Stephen Breyer and Ruth Bader Ginsburg to the court.

 Moreover, it was Bush himself who created the positive expectation for this nomination by going to the filibuster mat over his appellate judges and facing down Democrats during his first term. He consistently gave clear indication that he would be solid on all his judicial nominees. This was the one place, along with the war on terror, where Bush could be trusted implicitly. He might spend us into oblivion with prescription drugs and education bills, but when it came to judges, George W. Bush was rock solid. Bush himself gave us that context. He created it and sustained it, and with it the rising expectations for this nominee.

 If Harriet Miers had been put forth in the 1950's or 1970's, perhaps no one would have raised a voice against her. But with the culture wars rising, the country divided and conservatives crying out for redress, Harriet Miers was the wrong pick at the wrong place at the wrong time. The context demanded a bold pick. Harriet Miers is not that pick.

 2005 built expectations to a fever pitch and the filibuster rolled with it, giving rise to the "constitutional option." Bill Frist stood there with his finger on the trigger, ready to bag the Senate Democrats on the principle that filibusters over judges were unconstitutional. Conservatives were disappointed when he backed down, as the "gang of fourteen" rose to power as a "Senate within the Senate." But as much as conservatives wanted a showdown, they figured the big one was coming. Why not keep the powder dry until it was really needed? Then it came. O'Connor resigned. John Roberts was nominated to replace her. Then the shift when Rehnquist died and Roberts became Chief Justice. But that's ok. Wait. Be patient. The next one will be the real battle anyway. My question is: Did George W. Bush sense any of the emotional build-up here? Was he aware of what he needed to do from a gut level? Did he know that he had to come through? If he did, he would not have nominated Harriet Miers. A lot of people have speculated that Bush was "mad at conservatives" or wanted a "crony" to ascend to the high court. I don't buy any of this. I think he just did not have any sense of context here, any sense of the moment. This was a gut-level error. George W. Bush failed to perceive the context of his nomination as dictating his choice. He needed to nominate a warrior, a Scalia or a Thomas, or at least another Roberts and he failed to do so.

 The buildup to this nomination was created both by Bush himself and the events of the last 32 years, 20 of which had Republican presidents in power. The reason conservatives are so mad about this is that they were led to expect one thing, an intelligent, combative, highly educated supreme court justice. And they did not get it.

 For now, Harriet Miers nomination will proceed. Conservatives will brace for the next nominee, whether it is a replacement for Miers or for the next retirement. Bush should do next time what the on-going context demands, a real known conservative with a robust, originalist judicial philosophy.

  John Pendleton