Rightank

In today’s Wall Street Journal (registration req’d), Senator John Cornyn offered his defense of why Miers is a great nominee and why conservatives should be happy that she was Bush’s preferred pick.

His arguments are essentially repeats of what Bush stated when he introduced Miers to the world. Cornyn says that she’s in touch with the American polity. Why? Because she hasn’t been a judge. She’s been looking out for the rights of others in state and federals courts as a trial lawyer. This litigation experience tends to engratiate her to the public. Miers “understands the consequences of [The Supreme Court’s] decisions on the American people.” So what? Do you think that if the Court were composed of more judges who “understand” the American public that Lawrence would not have happened? There are plenty of lawyers who are pro-abortion, pro-gay marriage who are also understand consequences of court decisions. Moreover, the merits of the “understands real Americans” argument is more applicable to the liberal members of the Court and not the conservatives (currently Scalia, Thomas, and hopefully Roberts). The liberal justices (Souter, Breyer, Ginsburg, and Stevens) and (O’Connor and Kennedy–on social issues) are the ones who displace the conscience and will of the public expressed through their elected representatives and impose their own policy preferences. They are the ones who flubb their noses at our Constitutional contract and look to “established international principles” to interpret the People’s document instead of the written text. Scalia and Thomas were already judges when nominated and that has not impeded their ability to understand the ramifications of a Supreme Court decision.

In addition, Cornyn argues that Miers is a real trailblazer for women. Big deal. So are many other women attorneys. I’m sure Ginburg’s rise to the top of the ACLU could be described as “trailblazing,” although from a different ideological and corporate track. Being the president of a bar assocation (apart from the association with liberal utopian lawyers) is like being student-body president–no intellect required, but you need to be good at hobnobing and refrain from slurring your speech. There are plenty of qualified women jurists like Owen, Brown, and Clement who are trailblazers in their own right, yet they are proven conservatives. Miers is not a proven conservative woman trailblazer, which is the kind of trailblazer that deserves the President’s nod to serve.

And, that’s about it. She didn’t go to a Ivy League school, so what. That’s really not important. What is important is that she possesses the intellectual acuity to withstand the time-driven pressures associated with being a Supreme Court Justice. Miers might possess such an intellect, but will the American people be capable of judging that from her mouth alone during the confirmation hearings? She’s got a heckuva resume. So what. So did Justice Souter.

It is hard to defend Miers right now other than by asserting that we should trust President Bush. Presidential trust far to often fails as a reliable indicator of a Supreme Court nominee’s eventual jurisprudence. The stakes are too high to roll the dice on trust.

Conservatives who find themselves defending the Miers nomination from other conservatives (like me) are fond of using the futuristic catch-all argument of “No one knows how a nominee will decide cases” after confirmation. In other words, Miers could end up being like Souter or Kennedy, but it’s impossible to predict a justice’s movement from the right to the left when on the Court, so Bush’s assertion that she is conservative is good enough.

This argument doesn’t fly, however. When Reagan nominated Judge Robert Bork to serve on the Supreme Court, he was originalist and a social conservative. He believed that Roe was an opinion without constitutional basis (which it is). Everyone believed that he would stick to his core values while on the Court, which is why the Democrats feared him like the plague. You can look at his writings both before and after his nomination (I highly recommend Coercing Virtue: The Worldwide Rule of Judges) and you can see his consistent judical philosophy. The “No one knows” argument only works when you don’t have a sufficient record of opinion writing or other intellectual literature written by the nominee that gives the American people reassurance the nominee will adhere to his jurisprudential values as a Supreme Court Justice. Miers simply does not have a stellar written record and it is highly unlikely one will be found.

Conservatives were hoping for a nominee like Bork, someone who is socially conservative, an orginalist, a brilliant (not just average) legal mind. Miers is not Bork-like or Scalia-like, she’s far from that. Rising to the top of a law firm is a nice feat, but ladder climbing is not one of the top qualifications for securing a seat on the Supreme Court.

Perhaps, as Ann Coulter suggested today on Sean Hannity’s radio show, President Bush’s pick was intended to infuriate certain conservatives who did not want Gonzales to be the nominee. If Bush’s aim was to infuriate, he suceeded. It’s not that I might not end up liking Miers, but her nomination is presumptively unsupportable as it currently sits.

Nothing I’ve heard or read today has convinced me that the Miers nomination is a good thing. VP Cheney went on Rush Limbaugh’s radio program and confidently stated:

I think [Bush] found a good one in Harriet Miers. I think she’ll do a great job.

I think is not the same as I know. Because Republicans have been burned by more than half of their recent Supreme Court appointments, President Bush and Vice President Cheney deserve to know that their nominee will uphold the Constitution as written and possess the intellectual acuity and judicial temperment to resist legislating from the bench.

National Review’s editors had this to say about the Miers pick:

Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field. It seems highly unlikely that she will be the kind of justice who, in combination with Roberts, Scalia, and Thomas, will attract additional votes by the sheer force of her arguments. This nomination was a missed opportunity.

Indeed, Miers is a missed opportunity for Bush. Some think she’s conservative enough, relying on thoughts of respected conservative commentators. Trust, however, is not the same as knowledge.

Optimistically, Miers will turn out to be a fantastic Supreme Court Justice. Perhaps Miers’s forthcoming testimony will demonstrate her dedication to the constitutional text and her disapproval of judicial activism found in Lawrence and Roe. Maybe we just don’t know enough about her yet.

But that’s not the point. The point is that Bush nominated a friend, a trusted acquaintance, rather than a judge who is verifiably conservative or an attorney who advocated on behalf of conservative causes. That’s a shame.

This morning, President Bush nominated White House General Counsel Harriet Miers to fill O’Connor’s seat.

I am utterly disgusted by the nomination. I can’t believe that W. would deliberately refrain from selecting a verifiable, principled conservative for the position. President Bush nominated someone with no judicial experience and with absolutely no assurance (other than Bush trusts her) that Miers will not thrust gay marriage and support other socially destructive policies that will be trumpeted in the halls of the Supreme Court. I am very disappointed. Mark Levin’s comments sum up my feelings quite well:

Miers was chosen for two reasons and two reasons alone: 1. she’s a she; 2. she’s a long-time Bush friend. Otherwise, there’s nothing to distinguish her from thousands of other lawyers. And holding a high post in the Bar, which the White House seems to be touting, is like holding a high position in any professional organization. But it reveals nothing about the nominee’s judicial philosophy. There are many top officials in the Bar who I wouldn’t trust to handle a fender-bender. Also, early in his term, the president singled out the Bar for its partisan agenda and excluded it from a formal role in judicial selection. The president said he would pick a candidate like Antonin Scalia or Clarence Thomas, and he did not. We all know of outstanding individuals who fit that bill, and they were once again passed over. Even David Souter had a more compelling resume that Miers.

The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their “extra-constitutionalism.” The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt’s New Deal. But no one will accuse him of FDR’s boldness when it comes to the Supreme Court.

If people are disappointed, they have every reason to be.

Conservatives should feel a little betrayal ebbing from the President’s pick. As Mark Levin shrewdly noted, Miers is simply not a judicial nominee in the mold of Scalia and Thomas. The base is upset, and I hope Bush feels the level of frustration of his loyal supporters regarding his nomination of Miers.

W. had his chance to shove a verifiable, conservative nominee in the liberals’ face. Instead, he choose to walk the path of diversity and preen to cajoling Senators who successfully prevented the American public from having another Supreme Court justice who is a verifiable, social conservative.