Harriet Who?

Yes, it's been a couple weeks. But I've been busy -- in part figuring out how to politely tell the President whom I supported for re-election to... well, let's just say he's made better decisions.

Forget hurricane relief -- I'm smart enough to realize that while the Administration screwed up, so did every facet of government at the state and local level, and our media's decision to sensationalize rumors into fact has left us with even less faith in the MSM than before (well, I guess it might have been worse if Dan Rather had been reporting, but not much). The disaster in New Orleans was a tragedy in every way -- exaggerating the events helps no one.

But supposedly, the President was weakened enough by the events surrounding Katrina that he didn't want to invite a battle on his next Supreme Court nominee. Never mind that his first nominee sailed through confirmation, simply because the President found a strong candidate who made the Senators look like complete buffoons (well, more than usual). No, here we needed to find a compromise candidate, someone approved by Harry Reid. Yuck.

I'm sure Harriet Myers is a fine lawyer and wonderful human being. I think she's probably a terrific administrator, based on her experience running a large Texas law firm. But that doesn't qualify her for the Supreme Court. I couldn't agree with George Will more...

It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's ``argument'' for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections.

Furthermore, there is no reason to believe that Miers' nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers' name probably would not have appeared in any of the 10,000 places on those lists.

Charles Krauthammer also nails the issue to the wall...

It is particularly dismaying that this act should have been perpetrated by the conservative party. For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution.

There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous.

It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

The most disturbing thing in Krauthammer's article is not the obscene number of lawyers in the U.S.; it's his statement that schoolchildren will one day end up trying to figure out who was who in the "Bush-Clinton-Bush-Clinton" 1989-2017 Presidential succession. Shudder. But I digress.

Professor Bainbridge urges a fight on the nomination. I'm ticked off that we need to fight amonst ourselves on the nomination, but the President bought this battle by failing to live up a specific promise. Instead of offering us another Scalia or John Roberts, we're offered a personal friend (and the word crony would not be improper) whose qualifications are sparse and at best may turn into Clarence Thomas -- but is just as likely to turn into David Souter. Okay, maybe W. is smart enough to avoid that... but I can't take that on faith. Dan Henninger, who appears to think Miers will be confirmed, stresses why conservatives are upset...

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.

Our voice is to say no. Our hope is that Harriet Miers withdraws.