Simmer Down and Think about Harriet Miers

I have been reading and listening to a great deal of moaning and nonsense about the nomination of Harriet Miers to the U.S. Supreme Court. This explosion of opinions is important because most of us never heard of her, and what is said in the press and on TV is going to shape the debate. Today I offer two reasoned opinions that I think make the most sense, and conclude that Miers should be confirmed.

Kevin P. Martin in the Boston Globe on October 7, 2005 said (excerpt),
“PRESIDENT BUSH'S nomination of Harriet Miers to the Supreme Court has been met with a remarkable amount of resistance from conservative pundits, including such luminaries as George Will, who have stumbled over themselves rushing to question her credentials. According to these critics, because Miers is not a well-known judge, attorney, or legal scholar, there is reason to doubt her competency to serve as a Supreme Court justice. Because she is likely incompetent, the reasoning goes, Bush appointed her just because she is a crony.

Frankly, it is stunning that conservatives would jump to these conclusions. Any suggestion that Miers lacks the basic competency to perform the functions of a Supreme Court justice betrays a lack of understanding of how the Supreme Court operates. It also naïvely assumes that the president's task in selecting justices is simply to identify the ''most qualified" individual for the position.
Why, then, the rush to dismiss Miers as a mere crony? Mostly it is because conservatives have long had a dream list of nominees to the court, federal judges such as Michael Luttig, Samuel Alito, Edith Jones, Janice Rogers Brown, and Mike McConnell, and non-judges such as Miguel Estrada. To be sure, the failure to have a conservative superstar nominated is disappointing. Each of these individuals likely would have been a superb justice and has used his or her position on the court to advance conservative jurisprudence more effectively than Miers, perhaps, can be expected to.

To assume, however, that Bush is engaged in cronyism because he passed over these individuals for another qualified individual, one whose judgment he is familiar with personally rather than merely as a matter of reputation, is a disservice to both Miers and the president. It also ignores history. Justice Clarence Thomas is among the justices currently revered by conservatives for his service on the Supreme Court, and deservedly so. Yet at the time of his nomination, it would have been difficult to finger Thomas, only recently appointed to the Court of Appeals, as the nation's preeminent jurist, legal scholar, or advocate. He likely was selected in part because his judgment was trusted and in part for political reasons, and the same is likely true of Miers, a woman and evangelical Christian hailing from the underrepresented (on the court) red states.” Kevin P. Martin

And Thomas Sowell, in “Real Clear Politics” offered this piece (excerpt)
October 7, 2005
Republican Senate Is Weak, Not Bush

”Much of that frustration and anger is now being directed at President Bush for his nomination of White House counsel Harriet Miers to the Supreme Court. Why not someone like Judge Janice Rogers Brown or any of a number of other identifiable judges with a proven history of upholding conservative judicial principles under fire?

Looming in the background is the specter of people like Justice Anthony Kennedy, who went on the High Court with a "conservative" label and then succumbed to the Washington liberal culture. But while the past is undeniable, it is also not predestination.

This administration needs to be held responsible for its own shortcomings but not those of previous Republican administrations.
Rush Limbaugh has aptly called this a nomination made from a position of weakness. But there are different kinds of weakness and sometimes the difference matters.
President Bush has taken on too many tough fights -- Social Security being a classic example -- to be regarded as a man who is personally weak. What is weak is the Republican majority in the Senate.

When it comes to taking on a tough fight with the Senate Democrats over judicial nominations, Senate Majority Leader Bill Frist doesn't really have a majority to lead. Before the President nominated anybody, before he even took the oath of office for his second term, Senator Arlen Specter was already warning him not to nominate anyone who would rile up the Senate. Later, Senator John Warner issued a similar warning. It sounded like a familiar Republican strategy of pre-emptive surrender.
Before we can judge how the President played his hand, we have to consider what kind of hand he had to play. It was a weak hand -- and the weakness was in the Republican Senators.

Does this mean that Harriet Miers will not be a good Supreme Court justice if she is confirmed? It is hard to imagine her being worse than Sandra Day O'Connor -- or even as bad.

The very fact that Harriet Miers is a member of an evangelical church suggests that she is not dying to be accepted by the beautiful people, and is unlikely to sell out the Constitution of the United States in order to be the toast of Georgetown cocktail parties or praised in the New York Times. Considering some of the turkeys that Republicans have put on the Supreme Court in the past, she could be a big improvement.

We don't know. But President Bush says he has known Harriet Miers long enough that he feels sure. For the rest of us, she is a stealth nominee. Not since The Invisible Man has there been so much stealth.

That's not ideal by a long shot. But ideal was probably never in the cards, given the weak sisters among the Republicans' Senate "majority."
There is another aspect of this. The Senate Democrats huffed and puffed when Judge John Roberts was nominated but, in the end, he faced them down and was confirmed by a very comfortable margin.

The Democrats cannot afford to huff and puff and then back down, or be beaten down, again. On the other hand, they cannot let a high-profile conservative get confirmed without putting up a dogfight to satisfy their left-wing special interest groups.
Perhaps that is why some Democrats seem to welcome this stealth nominee. Even if she turns out to vote consistently with Antonin Scalia and Clarence Thomas, the Democrats are off the hook with their base because they can always say that they had no idea and that she stonewalled them at the confirmation hearings.” Thomas Sowell

As I have said before, I didn’t vote for President Bush for his oratorical qualities; I voted for him because I trusted his character, and because I believed that his beliefs more closely fit mine than did those of Gore and Kerry. I trust him on this nomination. In addition to the weak position the Republican Senate has left the President on this matter, there are rumors, impossible to confirm, that several prospective nominees declined to go through the confirmation process. The Democrats have made this process into a vicious war, in which the only thing that matters is the right to kill babies. Why would anyone endure what Bork and Thomas went through? Justice Ginsburg was confirmed by a vote of 97 to 3 even though her background as an ACLU attorney left no doubt that she was an extreme left-winger. Republican senators rightly felt that any qualified person nominated by the President should be confirmed.