I’ll admit it: shortly after Harriet Miers’ nomination I said that Bush had “sold out” conservatives. And that was before I’d read what Robert Novak and George Will think. But now I’m sure I overreacted.
Actually, what’s made me backtrack the most is the over-the-top criticism of Miers. Even the normally level-headed Professor Bainbridge seems almost to be foaming at the mouth: today he suggested that Bush’s defense of Miers might “do grave damage to the Evangelicals and Catholics Together project and even the Republican coalition.” Maybe it’s time to take a few deep breaths.
What’s gotten up everyone’s dander about Miers?
- The conservative nominee wish list: Just about every conservative had a list of candidates she would like to see nominated to the Supreme Court. It’s safe to say that Miers wasn’t on any of those lists. So we’re annoyed: “why, Bush didn’t even pick my tenth choice!”
- Miers’ jurisprudence: There’s not much to get worked up about here, unless it’s the lack of stuff about which to get worked up.
- The confirmation process: It seems like some conservatives wanted a big fight over principles of jurisprudence during the confirmation hearings. That doesn’t appear very likely to happen with Miers.
- Miers the person: She seems like a wonderful person, teaching Sunday school and all, but she didn’t go to a top law school and hasn’t written on Constitutional issues.
- Bush the person: He’s asked us to trust him regarding Miers, but he’s betrayed our trust so much recently that we have no reason to do so. And what could he possibly know about choosing a Supreme Court nominee?
Let’s look at each of these.
- The conservative nominee wish list: Yes, it’s disappointing that Bush didn’t nominate someone like Michael McConnell, but that’s not so surprising in the history of SCOTUS nominees. As Kevin Martin points out, Justice Thomas wasn’t particularly high on conservatives’ lists, either, at the time of his nomination. And someone on a conservative’s wish list is likely to draw more fire during the confirmation process (see below).
- The confirmation process: I was among those who thought that it was a shame not to defend conservative jurisprudence during the confirmation hearings. It would bring the debate before the public and start an important dialog, I thought. Now I’m not so sure. For that kind of thing to work, you have to have 1) a public that pays attention to nominations and 2) a Congress that puts ideas over ideology. We have neither. The few members of the public who do watch the nominations are already engaged in the dialog about jurisprudence, and odds are they’ve already taken sides. And the Senators sure aren’t going to discuss serious judicial philosophy; in Roberts’ hearings the biggest area of disagreement apparently was over his heart-head volume ratio. So assuming the candidate is one we’d want to be nominated anyway, I see no great advantage to a public fight over her nomination.
- Miers’ jurisprudence along with Miers the person: Here’s where we need more information, information that should come out in the next few weeks. I suspect that Miers may not be the most brilliant jurist, but I’m not convinced that’s a demerit. After all, the most sophisticated analyses often are used to bend the meaning of the law to fit the needs of the moment and the desires of the judge. That’s not what we’re looking for. And I’m not terribly concerned that Miers will turn out to be another Souter, i.e. turning to the left after joining the bench. For good or bad, someone like Souter just wouldn’t have been so loyal to Bush over so many years–if nothing else, we know she’s tenacious.
- Bush the person: This argument gives me the most pause, because President Bush just doesn’t deserve unquestioning trust, though he does have the prerogative to nominate justices.
So let’s wait and see. Let’s hear what Miers has to say during the confirmation hearings. Until then, can’t we give her the benefit of the doubt?