UPS AND DOWNS.(The Talk of the Town)(up-or-down vote, Congress)

During the six months or so prior to and encompassing the nomination and confirmation of John Roberts as Chief Justice of the United States, one phrase was on every Republican senatorial lip. "All of the President's nominees, both now and in the future, deserve a fair up-or-down vote," said Sam Brownback, of Kansas. "Every nominee, no matter if the President is Democrat or Republican, deserves an up-or-down vote," said Jim DeMint, of South Carolina. "We must take action to insure President Bush's nominees are getting the up-or-down vote they deserve," said Kay Bailey Hutchison, of Texas. "Since the day I came to the U.S. Senate," said Pete Domenici, of New Mexico, "I have believed strongly that every nominee deserves an up-or-down vote." The conservative commentariat was equally of one mind about the sanctity of verticality. "The American people," wrote John Podhoretz, in the Post, "won't understand why a candidate should be denied an up-or-down vote." The White House, naturally, agreed. "We believe that every judicial nominee deserves an up-or-down vote," said Karl Rove. Boing, boing. It was like watching a trampoline exhibition.

Up or down, down or up: there isn't much to be said for the Harriet Miers episode, but at least it ought to shelter us, for a while, from this particular talking point. Harriet Miers was President Bush's nominee. Therefore, according to the catechism, Harriet Miers deserved an up-or-down vote. She didn't get one. Her nomination, for Sandra Day O'Connor's seat on the Supreme Court, didn't even get a hearing from the Senate Judiciary Committee. Nor was her defenestration a consequence of Democratic intransigence. It was a consequence of Republican intransigence. When she withdrew, Brownback put out a statement. "This was a difficult and courageous move for Ms. Miers and the President to make," the Senator said contentedly, "but I think it was the right move."

The pre-Miers formula assumed that up or down meant up. But Miers did not get the hook because of any real danger that this time it might have meant down. Before her withdrawal, and more so afterward, it was clear that she would have been confirmed if the President had stood by her. For most of her conservative critics, complaints about her qualifications and her intellect were a smokescreen for doubts about her ideological reliability. Brownback and a few others, with an eye on the activist base for 2008, probably would have voted against her. But at least an equal number of Democratic senators--whose leader, Harry Reid, had all but endorsed her--probably would have gone the other way. A majority of the majority plus a minority of the minority would have done the trick. Those who yearn for bipartisanship would have hailed the result as a victory for the sensible center over the supposed extremes of right and left. But Democrats, even those who would have voted against her, were well on their way to suspecting that anyone capable of provoking so much conservative enmity might be on some level O.K. In any case, Miers would have donned her black robes fresh from a vivid experience of right-wing vilification. Perhaps she would have bonded in sisterhood with her colleague Ruth Bader Ginsburg and turned into precisely the independent-minded moderate the right feared. We'll never know.

In truth, the up-or-down vote was never sacred to Republicans. Or Democrats, for that matter. Or Whigs, or Federalists. From the Presidency of the Father of His Country through that of the father of George W. Bush, twelve of the thirty-four Presidential Supreme Court nominees who never made it to the Court never made it to the Senate floor, either. More recently, sixty-four of Bill Clinton's choices for the federal judiciary never came to a vote. A few were threatened with filibuster, and the rest were blocked by even more arbitrary methods. (A filibuster needs forty-one senators to succeed, a "hold" only one.) Clinton's two nominees for the Supreme Court won easy confirmation, but that wasn't because of any principled Republican reluctance to use ...