Gideon's Blog

In direct contravention of my wife's explicit instructions, herewith I inaugurate my first blog. Long may it prosper.

For some reason, I think I have something to say to you. You think you have something to say to me? Email me at: gideonsblogger -at- yahoo -dot- com

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Wednesday, October 19, 2005
From my email box, I get the impression that my point in my previous post has been somewhat misunderstood. Let me clarify a bit.

First, I'm not defending the nomination, as some people seem to think I am doing. As I stated right up front, conservatives are right to be deeply disappointed in Miers. She's a mediocre nominee and obviously not the best choice for the post regardless of what considerations the President had apart from being a conservative jurist. There are better choices who are women, better choices who are not sitting judges, better choices in pretty much any category you choose to name.

Second, some people seem to think that I accused conservative opponents of Miers of being too "results-oriented" rather than (properly) concerned with judicial philosophy. I made quite clear, it is *defenders* of Miers who are traducing two important conservative principles, viz: that nominees are not supposed to represent specific constituencies and that reasoning matters at least as much, probably more, than the outcome of a specific case; this is part of what distinguishes law from politics and the Court from a legislature. *Defenders* of Miers have regularly violated these principles as part of their defense, not *opponents.*

But conservative opponents of Miers have traduced two other very important principles, and I don't think we should lose sight of that fact.

Some, though not all, conservative opponents of Miers have said they oppose her because they think she will be another Souter or O'Connor. What they mean by this is: that she will not be a consistently conservative jurist in terms of either philosophy or result; possibly, she won't be a conservative at all.

I think it should be clear that setting such a standard is moving the goal posts from where conservatives have historically held they should be set. Conservatives have held for a long time that judicial philosophy should be vitally important in Presidential selection of nominees to the Court. They have not similarly held that anyone dissimilar to Scalia or Thomas in philosophy (these two, by the way, differ signifiantly from one another in philosophy) should be rejected by the Senate. To argue otherwise is to argue that the Senate should, properly, only confirm nominees who pass a rather stringent ideological bar. That implies, logically, that Senators Schumer and Leahy have been right all along, and that it's entirely proper to reject nominees for ideological reasons. It implies, further, that the Democratic filibusters were entirely legitimate; the nominees who were filibustered had (from the Democrats' perspective) the wrong judicial ideology, and surely it is more legitimate to filibuster life-tenured judges than mere legislation. It also implies that conservatives who voted for a judge like Stephen Breyer - who has a manifestly judicious temperament, high intellect, wide expertise, etc. - did wrong because, after all, while Breyer is a thoughtful and restrained Justice, he is not an originalist in the Scalia mode. It even implies that conservatives might have been wrong to vote for a nominee like John Roberts, who made it pretty clear in the hearings that he is not a Scalia clone.

It is obviously bad if Miers is rejected because conservatives worry she's not a "safe" vote to overturn Roe. That would imply that conservatives are entirely unprincipled and results-oriented. But it's also bad (though not quite as bad) if Miers is rejected because she's not "clearly" an originalist. There is simply no way, politically, that conservatives are going to sustain the kind of ideological purity that such a rejection would imply across all possible future nominees. So what kind of message would they be sending by rejecting Miers?

This brings me to the second principle traduced by conservative opponents of Miers. Conservatives have argued that the President deserves considerable deference in his nominations to the judiciary. The Senate's job is to advise and to consent, not to attempt to co-select the nominees.

This is an important principle for a number of reasons. For one, it is an attempt - perhaps hopeless - to limit the influence of petty politics on judicial nominations. For another, it is the only way, in our polarized age, that any judges are going to get confirmed; both Democratic and Republican Presidents send up a goodly number of nominees to the judiciary that Senators on the other side of the aisle would prefer to see replaced by someone more conservative or more liberal respectively.

Senator John McCain came out very quickly in favor of Miers. Some have suggested that this is because she is a future Souter; given Senator McCain's long anti-abortion record, I find that implausible. Others have suggested that this is because he is currying favor with the Bush Administration; I find that implausible as well, not least because he came out in favor before the Bush Administration was aware that the nomination was a big political mistake. I think Senator McCain came out quickly for Miers for a very simple reason: he intends to be the next President, and he's showing President Bush the deference in this matter that he properly expects to receive when he is making nominations to the Court.

One could argue that opponents of Miers are not, in fact, arguing that the Senate should reject her, and hence are not traducing this principle of deference. But I find that position disingenuous. One goes public with opposition in order to oppose publicly. Why on earth would one publish an op-ed against Miers, circulate a petition against Miers, go on television to denounce Miers, if one did not also want one's Senator to vote against Miers? Surely, if one wanted to uphold the principle of deference to Presidential nominees to the judiciary, but also voice one's concerns, one would voice them more privately - in terms of money and time that will not be donated in the future, get-out-the-vote efforts that will fail, etc. Publicly one might express deep disappointment, but the tone of much of the opposition is rather more forceful than that. Anyhow, plently of opponents have said explicitly Miers should be rejected by the Senate if her nomination is not withdrawn.

Properly, conservatives have argued that the President should have chosen someone else. Properly, they are disappointed and angry. But I can't see a principled argument for a Senator voting against Miers that doesn't either (a) significantly change the ground rules for what constitutes qualification to the Court in conservative eyes (i.e., the imposition of a far more stringent ideological test than has been historically applied or could plausibly be applied in the future); or (b) significantly change the conservative position on the role of the Senate vis-a-vis the President in the process of selection.

Unless, of course, Ms. Miers is actually unqualified according to more traditional criteria.

Now, it is possible that Ms. Miers will, in the hearings or in private discussion with Senators, manifest so injudicious a temperament, or so inadequate an intellect, that she could be rejected in conscience on these grounds alone. I think that's very unlikely; I also think that even if she does manifest such a profound deficiency, Senators would be loathe to insult her directly by saying so. It is also possible that Ms. Miers will take herself out of contention by articulating a judicial philosophy that is abhorrent or bizarre, or by straightforwardly prejudging future cases in her hearings. This, I think, is an even more remote possibility.

This leaves, as I said, only one principled grounds for rejection of Miers: that she was selected and promoted in ways that are questionably ethical. That she is a former personal counsel to the President, as well as a former White House counsel, raises real questions about conflict of interest and judicial independence. That the White House may have given to Senators or to other luminaries actual assurance of Ms. Miers' vote in future cases raises the same questions in a different way. That the White House may be giving different assurance to different Senators as different times, or providing assurance to outside supporters that is not revealed to the Senate, implies a kind of contempt for the Senate and its proper role in the process.

For all of these objections, should they not be allayed in short order, Miers could properly be rejected by the Senate. But it should be equally clear that such a rejection would be correctly interpreted by the White House and the country as a direct slap in the face and a profound expression of lack of confidence in the President. There could be no other way to interpret it. Conservatives who think they are somehow going to get a better replacement nominee if Miers is rejected are kidding themselves; regardless of how vindictive or conciliatory the White House is (and I expect them to be vindictive) after a hypothetical Miers rejection, the President will be profoundly weakened, and in no position to nominate a replacement who would not win bi-partisan support.

I think principled Senators of both parties should vote against Miers. I do not think her selection was proper; I do not think the methods by which she has been promoted are proper; and I think the President deserves a slap in the face. But I think principled conservatives should recognize that some of their other arguments, if they are principled, represent a considerable departure from their previously stated principles; and I suspect that these arguments do not represent considered new principles but rather intemperate expressions of their feelings of betrayal. If they do not recognize this fact, they may well wake up the day after Miers is rejected feeling penitent or even despairing at their new political situation, rather than satisfied that, against their interests, they did the right thing in opposing her.