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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Monday, October 17, 2005
I keep meaning to write something more substantial about the whole Miers mess, but I haven't thought of anything substantially worth adding to my comment from the 6th below.

I won't let that stop me, of course . . .

I don't pretend to be nearly as well-informed as guys like Hugh Hewitt and David Frum about the various alternative candidates for the Court. I also don't pretend to know anything about Ms. Miers; she's worked hard her whole career to make sure nobody does. But I think some things should be clear to everyone about this nomination.

No one can pretend she's the "best possible" choice, whatever that means.

No one can plausibly assert that she is "not qualified" for the Court.

No one can truly know how she would vote on this or that case that might come before the Court.

Because of all of the above, the nomination put conservatives to a difficult test, a test which they have already failed.

The test was: being deeply (and reasonably) disappointed, even infuriated by the nomination, could they come up with arguments against that nomination that are consistent - and consistently consistent (if you know what I mean) with conservative principles. This they have largely failed to do.

Here are two conservative principles that virtually every conservative objector to Miers has traduced at least one of:

- Presidents get to pick their nominees. The Senate's job is to evaluate their appropriateness for the Court, not to try to insinuate themselves as co-nominators.

- Nominees are not supposed to prejudge cases; they should be evaluated on character, temperament, experience, aptitude and, in the broadest sense, philosophy.

Opponents are outraged that the President didn't pick someone they think would have better advanced conservative goals or better articulated conservative juriprudential principles. But voicing the former explicitly violates the second principle above - it says, pretty openly, that conservatives are as results-oriented as liberals - and even the latter clearly violates the first principle articulated above, in that, unless Miers is actually *unqualified* for the Court it amounts to rejecting a Presidential nominee for the Court because we (role-playing Senators) would have picked somebody better.

Supporters of Miers, meanwhile, have frequently traduced two other important conservative principle with respect to Supreme Court nominations:

- Nominees are not supposed to be chosen on the basis of representing specific constituencies, whether ethnic, religious or what-have-you.

- The process of the Court's decisionmaking is at least as important as the specific decisions arrived at in particular cases, as faulty reasoning in the service of a less-than-horrible result can metastasize, infecting the rest of the law with unpredictable results.

It goes without saying that Miers' defenders have almost to a man explicitly argued that she should be confirmed because she is a woman and/or because she is an evangelical Christian. Many have also argued that conservatives should not worry about her because she's a solid vote against Roe regardless of whether we can say how she'll get there.

This is all water under the bridge, but it seems to me that at this point conservative pretenses to represent the party of principle on the Court are in tatters. Conservatives will not be able to argue with a straight face that nominees are not to be questioned about their opinions on specific cases, nor will they be able to argue that voting down a nominee for ideological reasons is inappropriate. Frum and Hewitt may respectively think that the other guy is entirely at fault, but I don't think the record will sustain either view; take a look at those principles again and tell me whether either man has managed to stay on the side of the angels in this debate. I think there's plenty of blame to go around here (ignoring, for the moment, the question of whether the President should have picked Miers in the first place, which clearly he should not have for a great host of reasons of which this bruhaha is only one).

There remains, of course, the question of whether Ms. Miers should be confirmed. The answer is no, but the reasons must be articulated very clearly lest a poor precedent be set.

Poor Ms. Miers should not be rejected because she is unqualified, because she is surely as qualified as many prior Justices and conservatives should hardly set the precedent that only academics or sitting judges are qualified to sit on the Court.

She should not be rejected because she is not clearly a strict constructionist or because it's not clear she would vote against Roe. It is not at all clear that Roberts is either a strict constructionist in the Scalia mode or that he is a vote to overturn Roe flat out (though he will surely vote to hollow it out bit by bit). More to the point, a Justice like Stephen Breyer is preeminently qualified for the Court even though he is not a strict constructionist and has voted to uphold and even extend Roe. Unless she manifests a truly bizarre temperament in the hearings - almost inconceivable - Miers will not present as someone who is unfit to serve on the Supreme Court. Conservatives may prefer a Scalia; they cannot say they view anyone else as unfit.

Needless to say, she should not be rejected because she is an evangelical Christian or is likely to overturn Roe, as some liberals have argued.

She should be rejected exclusively because of the process of her selection and promotion as the nominee, a process which threatens to undermine the independence of the judiciary.

Harriet Miers was President George Bush's personal attorney as well as the central individual involved in the selection process for the Court. That in itself should raise questions about conflict of interest and the possible need for recusal on any number of matters (objections which were all raised in advance about a possible Gonzales nomination). More ominously, there is evidence that the White House has provided information to outside groups that they would not provide to Senators who have a Constitutional duty to advise and consent on nominations to the Court, and that this information may have included improper assurances of how the nominee would vote in specific cases.

Rejecting Ms. Miers for these reasons would be a direct rebuke to President Bush and would be an unqualified victory for the Democratic Party. I'm afraid that at this point providing them with such a victory is the principled thing for conservatives to do. But conservative Senators should understand that if they vote against Miers that is what they are doing, and that the White House will certainly not be inclined to see the error of its ways and "tack Right" with any replacement nominee.

It would behoove those who wish to see Miers rejected to stop referring to disappointment, betrayal or other emotions they may feel, which are entirely beside the point and, frankly, demeaning to themselves and the insulting to the President. There's a serious issue here besides conservative pique. Conservatives should air it, but they shouldn't kid themselves that doing what is right will do them any good, politically.