October 6, 2005
LAW: The Miers Pick: Some Things Are Worth Getting Upset Over
As Leon H notes over at RedState, some folks supporting the Miers nomination seem to think that those on the Right opposing the nomination have lost their perspective. Now, I wouldn't recommend leaving the party, or staying home for the next election, over this. But an arguably bad Supreme Court pick is certainly worth getting agitated over.
My question #1 in deciding how mad to get about a decision by our elected officials is, "how hard will it be to change this?" The budget is stuffed with highway pork? Bad, but there's another budget next year. The budget is stuffed with new programs? Worse, since new programs rarely go away. The budget is stuffed with new entitlements that put a permanent drain on the federal fisc? Now, I'm gettin' angry. But even then, all of those are things a new president could change, if he or she had the votes in Congress.
But Supreme Court Justices essentially can't be removed, and their decisions live on for decades or centuries after they are gone (many areas of Constitutional jurisprudence are, to this day, the products of John Adams' nominations). With the (possible) exception of war, no presidential choice has as long-lasting effects as the choice of Supreme Court Justices. What was worse for America - Jimmy Carter in the White House for 4 years, or Harry Blackmun on the Supreme Court for 30? I'm not sure I'd pick Carter; at least after 4 years, we got to have another election, whereas after Breyer was confirmed we had to wait 11 years for another Supreme Court vacancy, and these two latest vacancies are to replace judges confirmed in 1972 and 1981. And nobody now requires presidential candidates to promise not to change anything Jimmy Carter did.
As I'll hopefully explain in more detail shortly, I have not, personally, concluded that Harriet Miers should not be confirmed by the Senate, nor have I even concluded that she would not be a wonderful Supreme Court Justice; rather, I'm still waiting to be convinced on her merits. But I can't fault anyone for complaining about the nomination. This is, to many of us, the #1 or #2 reason (behind only the war) for supporting Republicans for the White House. If Miers is another Kennedy or O'Connor, we will be grumbling over our disappointment for decades. If she is (as I very much doubt) another Souter or Blackmun, we will rue this nomination for the rest of our lives. And even if she is another Thomas, we will be sad if she steps down in 20 years, sad that a younger candidate might have held the fort for longer.
So, yes, this is very much an issue worth getting exercised about. We will live with its consequences all our days, without a second opportunity to do anything about it.
If Miers winds up in a partisan crossfire, having to establish her bonafides to the right while still needing to mollify the left, it will hopefully do something to end the era of stealth nominees, which has burned both sides in the past (just a Souter was an enormous disappointment to conservatives, Thomas would almost certainly have never been confirmed if he had provided honest answers about his views). Better to find out what they really think, and only let through those who can get confirmed anyway.
It is all about the hearings. Even as impressive as Roberts' resume was, I didn't understand how sharp he was until I saw him outshine 21 senators (plus 4 aides each) all by himself. Let's see how Miers does in the hearings before we decide she is unsuitable for the position.
You know damned well that Miers is far from the most qualified person for the Supreme Court, and I am certain that you were surprised by the pick. Like all the other nominees, she will not answer any important questions at the hearings, and we are going to have to trust W's judgment. This is not an appropriate course of action for a lifetime appointment. Now, I may be a leftist, but I know that Roberts was intellectually and professionally qualified for the Court, even if I don't care for his views. The Meiers choice is very Fortas-like. Let's hope she does not go the way of Fortas.
As for the attack on Souter, this is certainly one of the most interesting developments in our legal/intellectual culture over the past few years. Souter grew into the position. What do conservatives want? A Justice who never changes? I think the attack on Souter stems from his views on maybe two or three issues. Engaged lawyers may find more to criticize, but the pundits who know very little about the Supreme Court only seem to be concerned with abortion, affirmative action, gay rights (such as they are) and death penalty. This amounts to about 3 percent of the Supreme Court's docket, and these rulings do not directly affect 99 percent of the population.
I would say the best Supreme Court nomination we ever had was Stevens. Ford asked around and learned that Stevens was the most qualified person for the job. So he appointed Stevens. Isn't that what we should strive for? Instead, we get cronies (Fortas, Miers), ideologues (Thomas), second/third choices (Rehnquist) and academics with little litigation experience (Scalia and many others).
1. Well, you saw my gut reaction the day of the nomination. I think this nomination is a political blunder and a missed opportunity (not least because of Miers' age), but I have not come to the conclusion that she's unqualified - the jury's still out on that score. Go read Beldar on that issue, and I'll have more here soon.
2. There's not the slightest sign that Miers has Fortas' ethical problems.
3. Souter didn't "grow," he veered to the Left almost as soon as he got on the Court and stayed there. If you look at the broader docket you will see that he is on the left side of splits on the great bulk of the issues that produce left-right splits.
4. Yes, conservatives do want someone who will be consistent over time - consistency being the highest of virtues for judges, whose job is to apply the law, not change it.
Here's a quote from Dan Coates from yesterday;s New York Times about Miers. I think it sums things up. We hardly expect greatness anymore:
Ms. Miers's defenders have said she does not have to be a constitutional scholar to sit on the court, a sentiment that Dan Coats, the former Republican senator who has been asked by the White House to shepherd Ms. Miers through the Senate confirmation process, reiterated Friday, his first full day on the job.
"If great intellectual powerhouse is a qualification to be a member of the court and represent the American people and the wishes of the American people and to interpret the Constitution, then I think we have a court so skewed on the intellectual side that we may not be getting representation of America as a whole," Mr. Coats said in a CNN interview.
Mr. Specter, asked about that remark, laughed and wondered if it was "another Hruska quote" - a reference to an oft-quoted comment by the late Roman Hruska, a Republican senator from Nebraska, who defended G. Harrold Carswell, a Supreme Court nominee who was rejected by the Senate. "Even if he is mediocre," Mr. Hruska said, "there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance?"