Wednesday, October 12, 2005

Thoughts on the Miers Nomination

I haven't posted in a while, because I've had massive writer's block on this topic. But here goes:

I don't have a strong opinion about the nomination of Ms. Miers to the Supreme Court, but I am discomfited by the wailing and gnashing of teeth about this "stealth" candidate. People had the same complaint about John Roberts too! Overall, I'm much more swayed by the enthusiastic support of her colleagues than I am by criticism from those who don't know her.

As a manager, I think that President Bush made a wise choice to nominate a person whose talents, experience, and training compliment those of the sitting Justices. I agree with Hugh Hewitt that the last thing SCOTUS needs at this point is another legal scholar! (Hugh has lots and lots of posts, and Radioblogger has lots and lots of transcripts.)

Last week, Orin Kerr at The Volokh Conspiracy rounded up conservative pundits' dismay, and summarized the four basic arguments being made:
If you're right of center and support the nomination: You should approve of the Miers nomination because 1) the President has picked Miers, and you can trust him; 2) several prominent conservatives like James Dobson and Leonard Leo support the nomination, and they must know something you don't; and 3) the loudest conservative critics of the Miers nominations are the annoying ivory tower elites, and if they don't like her it's probably a sign that you should.

If you're right of center and oppose the nomination: You should oppose Miers because 1) Democrats like Harry Reid recommended her to Bush, and seem to be pretty happy with the choice; 2) the Alliance for Justice and PFAW haven't attacked Miers; and 3) lots of solid conservatives are upset about the Miers nomination.

If you're left of center and support the nominaton: You should support the nomination because 1) Democrats like Harry Reid recommended her, and seem to be pretty happy with the pick; 2) many conservative activists oppose it, and that's probably a sign that Miers is as good as it gets.

Finally, if you're left of center and oppose the nomination: You should oppose the nomination because 1) George W. Bush picked Miers, and having promised another Scalia or Thomas he surely will deliver; 2) prominent conservatives like James Dobson and Leonard Leo are in favor of the nomination, and their enthusiasm means that Miers must be bad news.
I think the angst about the Miers nomination boils down to the President's political sin: surprising the pundits. Nominating a lawyer wasn't the surprise, for obvious reasons, although pundits were expecting someone who had worn judicial robes. Nominating a woman wasn't the surprise, since President Bush had taken flack from all sides about originally naming a man to replace Justice O'Connor. Nominating a friend, a member of the Administration, and a Texan wasn't the surprise, since people had contemplated (and generally rejected) the possibility of Attorney General Alberto Gonzales being nominated earlier in the year. Therefore, nominating a female White House lawyer from Texas with no judicial service to her name wasn't the surprise.

The surprise was that she was chosen over those on the long list of more "suitable" candidates. (Dr. James Dobson provided some clues today that the short list was, indeed, very very short due to the likely tenor of the confirmation process, both inside and outside the Senate.)

Harriet Miers wasn't on the presumed "short" list, mainly because the pundits kept looking at judges and law professors in their elite circle, instead of active practioners. (Some even considered politicians as potential nominees.) People assumed that since the White House had a list of vetted candidates from the search that ultimately produced Chief Justice Roberts, the President wouldn't go outside that list. Having key Democrats endorse the choice added insult to injury!

As the James Taranto put it last Friday (second item),
When President Bush nominated Harriet Miers on Monday, we saw it as a missed opportunity. It left us underwhelmed, not appalled. But having spent last evening communing here with some 1,000 conservatives at National Review's 50th anniversary dinner, we see a political disaster in the making. [...]

From what we saw last night, the right is furious at President Bush for appointing someone they see as manifestly underqualified and for ducking a fight with the Democratic left--a fight that, in their view (and ours), would be good for the country, the conservative cause and the Republican Party.
Over at, Thomas Sowell has some choice words about the political calculus the President is really dealing with:

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.

If you were the President, faced with a spineless Senate majority, a nasty confirmation process, and needing other important legislation to move through the Senate, wouldn't you want someone who has bipartisan support, won't automatically trigger the "nuclear option" forcing a showdown on the filibuster rules, is well-qualified and well-respected in her profession, and who won't leave another vacancy in the Federal judiciary to deal with?