The Miers nomination


There is a fierce debate going on in the right-wing blogosphere over George W. Bush's nomination of Harriet Miers to the Supreme Court. It's intellectually interesting, but I'm afraid I don't have much to add. Here's an interesting chart, of the stands various commentators have taken on the nomination. The chief argument of Miers backers seems to be that we can trust George W. Bush to choose someone in line with their views. The chief argument against seems to be that the failure to nominate an appeals court judge or lawyer with more of a paper trail means that there will be no teachable moment in which conservatives can make the case for principled conservative jurisprudence and beat the liberal Democrats in the process.

I'm in the position of the old politician who said, "Some of my friends are for the nomination and some of my friends are against the nomination, and I'm always with my friends." I would have preferred another nominee: either Chief Judge Michael Luttig of the Fourth Circuit or Miguel Estrada, whose nomination to the D.C. Circuit was withdrawn in the face of a Democratic filibuster. But I don't think the conservative objections to Miers are going to have any effect on Republican senators. Some are pointedly reserving judgment, but it seems inconceivable to me that any significant number of Republican senators will oppose the nomination. If so, whatever the Democrats do, Miers will be confirmed. Caveat: Unless she makes some mistake in the hearings. But she played a role in the nomination of John G. Roberts and in his preparation for his hearings. She surely knows what to say and not to say. The most likely outcome is that she will be confirmed with about the same number of votes as Roberts. Then we'll see what kind of justice she will be.

Some on the right fear that she will be seduced by the blandishments of social Washington and will be a victim of the "Greenhouse effect"—Judge Larry Silberman's term for judges who seek the approval of the New York Times's veteran Supreme Court reporter, Linda Greenhouse. I doubt that. People in the Bush White House don't mix much with social Washington and don't seem to care any more than Jesse Helms did about the opinion of the New York Times. By all accounts that is true of Harriet Miers. You saw a lot of Justices Sandra Day O'Connor and Anthony Kennedy on the Washington social circuit. I don't think you would see much of a Justice Harriet Miers.