CON: Hugh Hewitt argues that we should not question Bush’s nomination, as it could lead to nuclear annihilation! (HT: Volokh Conspiracy and friends).

The of course there is the fact that the president picked her. With a nomination made, I prefer to press to the desired outcome, and support the president and recognize that the defeat of a nominee is a calamitous political consequence, no matter what other people say.

It may come as a shock to people, but I am a Republican, who believes that the care and nurturing of governing majorities of the GOP in the Senate and the House in time of war, and the preparation for a monumental struggle with Hillary in 2008, are crucial –indeed the most important– goals on the table.

We can lose the war. We can suffer terrorist attacks far more devastating than 9/11. Iran is not being deterred, and North Korea continues to be run by an unbalanced dictator with nukes. There are at least hundreds of thousands and probably millions of Islamofascists who would gladly bring WMD to this country and use them in our major cities. I would have preferred a different nominee, and I hope that my short list is the president’s short list the next time a vacancy occurs.

PRO: Professor Bainbridge argues that if we don’t question Bush’s support for Miers, specifically his support of her religious beliefs, it could lead to inter-faith warfare and even the destruction of the Republican party!

There is still an element in the evangelical community that firm believes Catholics are not Christians. (Jack Chick is just the worst of the lot.) The promising theological and political rapprochement between some evangelicals and some Catholics is still quite tenuous. If the people playing the faith card to get Miers confirmed aren’t careful, they could do grave damage to the Evangelicals and Catholics Together project and even the Republican coalition. It was, after all, us weekly Mass attending Catholics who elected George Bush in 2004.

Of all the words written about Harriet Miers, none are more disturbing than the ones she wrote herself. In the early 90’s, while she was president of the Texas bar association, Miers wrote a column called “President’s Opinion” for The Texas Bar Journal. It is the largest body of public writing we have from her, and sad to say, the quality of thought and writing doesn’t even rise to the level of pedestrian.

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

“More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.”

Or this: “We must end collective acceptance of inappropriate conduct and increase education in professionalism.”

Or this: “When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.”

Or passages like this: “An organization must also implement programs to fulfill strategies established through its goals and mission. Methods for evaluation of these strategies are a necessity. With the framework of mission, goals, strategies, programs, and methods for evaluation in place, a meaningful budgeting process can begin.”

Or, finally, this: “We have to understand and appreciate that achieving justice for all is in jeopardy before a call to arms to assist in obtaining support for the justice system will be effective.

Achieving the necessary understanding and appreciation of why the challenge is so important, we can then turn to the task of providing the much needed support.”

I don’t know if by mere quotation I can fully convey the relentless march of vapid abstractions that mark Miers’s prose. Nearly every idea is vague and depersonalized. Nearly every debatable point is elided.

It’s not that Miers didn’t attempt to tackle interesting subjects. She wrote about unequal access to the justice system, about the underrepresentation of minorities in the law and about whether pro bono work should be mandatory. But she presents no arguments or ideas, except the repetition of the bromide that bad things can be eliminated if people of good will come together to eliminate bad things.

Or as she puts it, “There is always a necessity to tend to a myriad of responsibilities on a number of cases as well as matters not directly related to the practice of law.” And yet, “Disciplining ourselves to provide the opportunity for thought and analysis has to rise again to a high priority.”

Throw aside ideology. Surely the threshold skill required of a Supreme Court justice is the ability to write clearly and argue incisively. Miers’s columns provide no evidence of that.

The Miers nomination has reopened the rift between conservatives and establishment Republicans. The conservative movement was founded upon the supposition that ideas have consequences. Conservatives have founded so many think tanks, magazines and organizations, like the Federalist Society, because they believe that you have to win arguments to win political power. They dream of Supreme Court justices capable of writing brilliant opinions that will reshape the battle of ideas.

Republicans, who these days are as likely to be members of the corporate establishment as the evangelical establishment, are more suspicious of intellectuals and ideas, and more likely to believe that politics is about deal-making, loyalty and power. You know you are in
establishment Republican circles when the conversation is bland but unifying. You know you are in conservative circles when it is interesting but divisive. Conservatives err by becoming irresponsible. Republicans tend to be blown about haplessly by forces they cannot understand.

For the first years of his presidency, George Bush healed the division between Republicans and conservatives by pursuing big conservative goals with ruthless Republican discipline. But Harriet Miers has shown no loyalty to conservative institutions like the Federalist Society.
Her loyalty has been to the person of the president, and her mental style seems to be Republicanism on stilts.

So conservatives are caught between loyalty to their ideas and loyalty to the president they admire. Most of them have come out against Miers — quietly or loudly. Establishment Republicans are displaying their natural loyalty to leadership. And Miers is caught in the vise between these two forces, a smart and good woman who has been put in a position where she cannot succeed.

My dad directs a faculty-juried contest of academic papers submitted by undergraduates. Usually he’ll have some students in his seminars evaluate the papers. Then he asks them, “which paper did you like the best?”; they often pick the eventual winner. When he asks them, “which paper do you think will win the contest?” they often pick another, poorly-written paper, a paper that uses the same kind of generalities and empty phrases we see above.

My point is that a lot of people think that kind of writing, because it’s incomprehensible, must be brilliant. I wonder if that’s partly why Bush put Miers on the top of his Supreme Court list.

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?

DURBIN: But there was one case, one case in particular that hasn’t been mentioned today that I’d like to ask you about, and that was the case involving Bob Jones University.

That was one of the most troubling decisions of the Reagan administration. It was a decision to argue before the Supreme Court that Bob Jones University should keep its tax-exempt status with the IRS, even though it had an official policy that banned interracial dating, denied admission to any applicants who engaged in interracial marriage or were known to advocate interracial marriage or dating.

When the Reagan administration took that position, it reversed the position of three previous administrations, including two Republicans, all of whom argued that Bob Jones was not eligible for this tax-exempt status.

This sudden reversal by the Reagan Justice Department, which you were part of at the time, led to the unusual step of the Supreme Court appointing a special counsel, William Coleman, as a friend of the court, to argue in support of the IRS.

In 1983, the Supreme Court ruled 8-1 against the Reagan administration and against Bob Jones University.

Judge Roberts, there was a heated debate within the Justice Department about whether or not to defend Bob Jones University and its racist policies. More than 200 lawyers and employees of the Civil Rights Division, representing half of all the employees in that division, signed a letter of protest. William Bradford Reynolds, the head of the Civil Rights Division, strongly supported defending Bob Jones. Ted Olsen — another person well known in Washington — opposed this defense of Bob Jones.

Which side were you on? What role did you play in the decision to defend Bob Jones University policy?

ROBERTS: Senator, I was ethically barred from taking a position on that case. I was just coming off of my clerkship on the Supreme Court, which ended in the summer of 1981.

Supreme Court rules said that you could not participate in any way in a matter before the Supreme Court for a certain period of time. I think it was two years or whatever it was. And it was within that period. This involved an issue before the Supreme Court.

So I was ethically barred from participating in that in any way.

DURBIN: The memo that you wrote about the Bob Jones University position, the memo of December 5th, 1983, that summarized it, leads one to believe in reading it that you were present during deliberations on this policy. Is that true?

ROBERTS: No, Senator.

DURBIN: You were not?

ROBERTS: I was not involved in the policy because of the bar on participation.

DURBIN: There appears to be another memo, which I’m going to send to you, dated September 29th, 1982, with your handwriting in it, relative to this same issue. And I don’t want to surprise you with it. I’ll send it to you, and if tomorrow we get a chance, we can revisit it.

Let me ask you this…

SPECTER: Senator Durbin, may we have the numbers there? The staff needs those in order to track them for the record.

DURBIN: I’d be happy to. This is dated September 29th, 1982.

SPECTER: And it has a number on it?

DURBIN: No number, but we’ll give you a copy.

SPECTER: OK. Thank you.

DURBIN: We’ll share it with the judge. I want you to have — this is not a surprise, I just want you to take a look at it.

We had a nominee for the 9th Circuit Court of Appeals, Carolyn Kuhl. Do you know her personally?

ROBERTS: Yes.

DURBIN: Served in the Justice Department with her.

ROBERTS: Right.

DURBIN: When she came before this committee, Senator Leahy asked her several questions, and she said when she testified, quote, I regret having taken the position I did in support of the government’s change of position on Bob Jones. The nondiscrimination principle and the importance of enforcement of civil rights laws by the executive branch should have taken sway and should have been primary in making that decision.

I appreciated her candor on that.

What is your belief? Was the Reagan administration position on Bob Jones University the right position to take?

ROBERTS: No, Senator.

In retrospect, I think it’s clear the people who were involved in it, as you say, themselves think that it was an incorrect position. I certainly don’t disagree with that.

DURBIN: Thank you.

Let me move to another topic.

LEAHY: I’m sorry, Senator. I didn’t hear the answer.

ROBERTS: The answer is no.

I don’t think it was the correct position to take.

DURBIN: Thank you.

There is something for everyone here. It can be read variously as 1) the nominee was happy to work for an administration that curried favor with reactionary religious leaders, 2) the nominee was not sufficiently respectful of such leaders, 3) the nominee doesn’t like ingrates or 4) the nominee has a lively sense of humor.

In advance of the hearings, Judge Roberts’ conservative views and philosophy can’t be precisely defined, whether it is done by reading memos or studying his record as a lawyer and judge. It is almost as if Judge Roberts’ career path has been positioned so that one day he could fly as a stealth candidate happily under the radar. This is, of course, nothing more than suspicion and conjecture, but concern is raised by Mr. Bush’s willingness to bet the house on a Chief Justice Roberts.

Would this choice be worse than picking from two of the ultra-right justices on the bench, Justice Antonin Scalia and Justice Clarence Thomas? Probably not, but what does Mr. Bush know that the rest of us do not? That, of course, is the all-important question for these hearings. Just what sort of conservative is Judge Roberts?

Why not all four interpretations at once? And I’m not sure that Bush does know something the rest of us don’t. Roberts seems to do both top-notch work and whatever best helps his current employers/clients. What will he do when he has no employer/client to answer to? Even he probably doesn’t know.