Strengthening Constitutional Self-Government

No Left Turns

Leaps of Faith vs Government by Consent

Harriet Miers is the President’s pick to replace Justice Sandra Day O’Connor. I do not know Ms. Miers. Few people do. She has no judicial record. Nothing in her background to demonstrate that she has a thorough understanding of the principles of the Constitution. Nothing, in short, to demonstrate that the President has fulfilled his campaign pledge to nominate people like Justices Scalia and Thomas who understand that the role of the courts is to interpret, not make, the law.

The President is therefore asking his conservative base to accept his judgment as an article of faith, and there is little doubt that she will be confirmed. Maybe Harriet Miers will prove in the fullness of time that faith to be well-founded. Maybe she will instead prove to be another David Souter. But whatever proves to be true, one thing is certain. By nominating a blank slate, the President has missed an opportunity to drive home in the political arena envisioned by the Constitution what has been wrong with the view, adopted by the Court over the past generation, that it is for the courts to decide all political controversies for us. "Trust me. Harriet Miers will vote the right way" is no answer to that problem, and it is a much more serious threat to our constitutional system of government than any particular decision.

Discussions - 5 Comments

However Miers turns out, it’s clear that this president does not want to lead a real fight for constitutional principle, nor does he want a nominee who will. The warning signs were there all along. Why throw out names that frighten the conservative experts (and therefore the conservative base) if you really intend to appoint a Luttig, for instance? Why toy with your base to that extent? There is no political upside to doing this. When we heard names like Miers and Thompson and Gonzales, it was because Bush was seriously considering them. It was the more right-wing names, perhaps, that weren’t "for real."

I think we’ve all known in our guts that this president is not really one of us. Worthy of our support, yes. Worthy of our completely confidence, never. Now, at least, we’re out of "denial"?

I’ll admit the news that Miers was the appointee was not what I expected to hear this morning, but...it seems that we are all a little too quick to judge (pardon the horrible pun). I would have to say Roberts was a smashing, classy, and savvy choice, and I fully trust that Bush is an intelligent man who might have more up his sleeve than we give him credit for. For as much as people on the other side want to discredit him as a simpleton, he got to the presidency, and I’m not so quick to jump to the conclusion that he doesn’t know what he’s doing. While I’m not ready to defend her (relatively unknown) merits at this point, I think conservatives need to keep their chins up a bit. The sky has not fallen yet.

I agree with John, here, and add the following. We have a president who was emphatic about the kind of judges he liked--Scalia and Thomas--and this was during a general election, not just the primary/caucus season. Bush has the votes to carry pretty much any nominee he sees fit to pick, and who presumably could hold his or her own during a Senate Judiciary hearing. Why not fulfill your campaign pledge with someone you have the votes for, even if it means they don’t get in with a Ginsburg-like majority. Those days are long over (no need to remind you how many Senators voted against Scalia). Americans can afford a close vote if it allows the nominee to make a case for principled jurisprudence. In short, there is no reason for conservatives to support as if by reflex this 60-year-old nominee, who will likely serve at least 15-20 years on the high court. There’s plenty of time to learn about this nominee’s judicial philosophy; I’ll assume a wait-and-see posture. The position is too important to hope for the best, esp. when we were promised the best.

Granting that Miers is an unknown quantity to many of you and therefore, you needn’t feel obligated to support her at this point, I do have to ask: Why are all of you so eager for a political fight? Isn’t it more important to get conservatives on the bench than run some theatrical show down over activism versus strict interpetation? A 60 year old conservative could conceivably be making judgements for 2o years, but a fight such as you are all spoiling for will likely be forgotten by this time next year. How are you so sure that the candidate you like would have gotten through? Are you in effect saying you’d rather win the battle and lose the war? If it is indeed a win if the candidate goes down or is badly damaged.

You "fight," that is, defend your candidate in the face of Democratic opposition precisely to shape public opinion over things worth fighting for. I think that this is a worthy fight to have, this discussion (by the president’s nominee and himself,a s well) of what a Constitution is and what role the Supreme Court should and should not have. It would also help when we face this scenario again in a year or two from now, which I believe will happen when Ginsburg and Stevens retire. Given the massive publicity that these nominations receive, the American people can continue to learn what our rulers think about the fundamental law of the land and how it should be construed by the courts.

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