We talked to quite a few people, and we heard not a single kind word about the nomination from anyone who wasn’t on the White House staff. A couple of our soundings led us to think that such support as it has received has been more sycophantic than sincere. One putative proponent privately distanced himself from his public praise of Miers. Another person, whose employer has strongly backed the Miers nomination, told us, “Of course, I disagree wholeheartedly.”
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Conventional wisdom still has it that Miers is a shoo-in for confirmation. We’re not so sure. 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.
Charles Krauthammer zeroes in on the problem:
When in 1962 Edward Moore Kennedy ran for his brother’s seat in the Senate, his opponent famously said that if Kennedy’s name had been Edward Moore, his candidacy would have been a joke. If Harriet Miers were not a crony of the president of the United States, her nomination to the Supreme Court would be a joke, as it would have occurred to no one else to nominate her.
[N]ominating a constitutional tabula rasa to sit on what is America’s constitutional court is an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. [...]
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.
Absolutely. The best conservative argument for the philosophy of the court is that the Constitution should be interpreted as written, not through some sort of deconstructionist psychic reading of what the Founders might or might not want if they were alive today and informed by supposedly enlightened European jurisprudence. If there is no public record whatsoever of where Miers stands on this debate, I wonder whether she has any underlying philosophy at all. Maybe I just naturally recoil when a President Bush puts forth an unknown quantity for the Supreme Court. The Harriet Miers nomination was a disaster the first time when it went by the name David Souter.
“A disaster on every level” is also what Robert Bork—nominated for the Supreme Court by President Reagan in 1987—said of the Miers nomination. He added:
It’s a little late to develop a constitutional philosophy or begin to work it out when you’re on the court already. It’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years.
Just as there’s a reason the judiciary shouldn’t assume the role of the legislature, there’s also a reason the judicial branch is supposed to be separate from the executive. When President Bush tries to put someone on the court whose only real qualification seems to be her proximity to him, he is neglecting the core principle that defines conservative court philosophy, and he is sinking to the very sort of behavior that conservatives have been decrying for years: using the court as a political tool. By putting forth Harriet Miers, President Bush is almost daring principled conservatives to oppose her, because if we didn’t, we’d be hypocrites.
President Bush places a high value on personal loyalty, and for that reason, he’s unlikely to withdraw the nomination of Harriet Miers. Well, I pledge my loyalty not to a particular leader or party, but to a set of ideas. And those ideas require me to oppose Harriet Miers because she is simply too close to the president and because there don’t seem to be any other arguments in her favor.
I hope there are still enough principled leaders in the Senate to give this nomination the kind of scrutiny it deserves. As Democrats are often fond of reminding Republican presidents, the Senate is under no obligation to rubber-stamp any of the president’s judicial nominations. Republican Senators should remember that as well.
