Harriet Miers is unknown to all of us except the President. Thanks to the Elite's uniform opinion that prospective justices should not talk about how they might apply their judicial philosophy to concrete hypothetical cases, it really is not possible to find out much about a nominee like Ms. Miers. Perhaps common sense will break out and Ms. Miers will consent to answer meaningful questions. I believe she must because she has absolutely no track record or paper trail, no cases we can look at, nor even arguments on behalf of clients in front of the Supreme Court.
I believe the arguments against nominees to the Supreme Court answering meaningful & specific questions about relevant constitutional issues are wrong. Because there are no constraints upon justices once confirmed, there is no reason for them to avoid answering specifics. Nothing prevents them from saying, for example, "Roe vs. Wade is bunk" and then ruling on cases affecting Roe vs. Wade. I don't care if the legal elites don't like the practice. I don't care what John Roberts or Harriet Miers think about the designated hitter rule in baseball. I want to know what they think about the constitution and the Supreme Court's role in it, and I want specifics to flesh out their judicial philosophy.
Especially in Miers' case.
George Will is right on target in his scathing op-ed today.
Senators beginning what ought to be a protracted and exacting scrutiny of Harriet Miers should be guided by three rules. First, it is not important that she be confirmed. Second, it might be very important that she not be. Third, the presumption -- perhaps rebuttable but certainly in need of rebutting -- should be that her nomination is not a defensible exercise of presidential discretion to which senatorial deference is due.
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.
Some of Will's reasoning is typical beltway elite crapola from there on, but his "trust me" comment is right on target, absent real questions and real answers. Will continues:
In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."
It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
President Bush's signing of the camapaign finance 'reform' bill was a huge error, IMHO. And it didn't take long for the Law of Unintended Consequences to rear its ugly head.
The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
Now, that's not necessarily true. I don't have a problem with having a real outsider on the bench, someone with a truly fresh perspective on the constitution. However, I'm not sure that any lawyer meets that test. I'd rather have a CEO, or a Jesuit, or a scientist -- hell, maybe even a doctor -- if my goal were a fresh perspective. Ms. Miers does not fill this role; she's just another lawyer.
Now, the main point in favor of the President's nominee is that he knows her well. They may have spent many nights on the porch of the ranch talking about constitutional issues. I don't agree with the comments of one of my readers, Rob Salkowitz, who said
... But if you assume instead, as your pals on the Left always have, that he's concerned exclusively with rewarding his financial/political cronies, isn't much interested in public policy as it concerns either liberal or conservative ordinary citizens, and isn't really that bright, it all starts to make sense...
Assuming one knows the motivations of others is nearly always a mistake. Better to look at the results of their actions. Ms. Miers might be the next Clarence Thomas, but she might be the next David Souter. We need to find out. If the Senators can't find out for sure, then they would be doing the right thing to vote against her confirmation.
We'll have to wait and see. This one is going to be very very interesting.