Trying to make a judgment about Harriet Miers is reminding me of the Churchill comment about the Soviet Union being an enigma surrounded by a riddle and wrapped in a mystery. There are two arguments in her favor that should give us pause. The first, from Hugh Hewitt and others, is that the past nominees who went bad (OConnor, Kennedy, Souter) were people who the White House didnt know and came from far outside. The three best justices (Rehnquist, Scalia, and Thomas) came from within the administrations, (though of course Thomas and Scalia had put in some bench time on the DC Circuit). Few Presidents have been as close to a nominee as Bush is to Miers. While a good argument, in the other three cases (Rehnquist, Scalia, and Thomas) there was lots of independent evidence that they were solid picks. Rehnquist had worked on the Goldwater campaign in 1964; Scalia had a long publication record, and Thomas had given those very ringing speeches about natural law and natural right, showing that he had a definite constitutional philosophy. With Miers we still havent the slightest clue.
The second argument is that Miers was apparently first recommended for consideration by her deputy, Larry Kelly. Kelly is, according to reliable sources I trust, One Of Us--a good Federalist Society conservative from the University of Notre Dame Law School. Kelly is right now properly keeping a discrete silence about the matter, and not returning reporters phone calls. It is not likely this is Machiavellian calculation on Kellys part to move up to the counsels office himself; he intends to return to Notre Dame next year. If Kelly thinks Miers is worthy of appointment, it should give us encouragement.
But then there is transcript of Miers testimony back in 1990, posted by Drudge today, where she criticizes the Federalist Society for being too politicized, but then goes on to say that she doesnt consider the NAACP to be a politicized group. This is a horrible sign. Then, too, we hear some old Texas friends saying she is "conservative on social issues, but liberal on economic issues." If this is vaguely true it is the sign of a deeply confused and unreliable mind. One thing to note over the last 20 years is the high correlation between Supreme Court votes on social issues and votes on economic and regulatory issues (and federalism), especially property rights. The Reagan Administration Justice Department, I am told, used prospective judges views on property rights as a proxy for their views on Roe v. Wade, and with the exception of the inconsistent OConnor (who voted right on most property rights cases), this correlation has been near iron clad.
So I repair to what I have been saying from the beginning. Miers needs to say something specific in her hearings. She needs to give Leahy and Biden an ulcer. Ken Mehlman of the RNC told the blogger conference call yesterday to "wait for the hearings," and wed see Miers strut her stuff. Ill be disappointed and dismayed if it is just pablum about her character, glass-ceiling shattering, and what an honor it has been to work for George W. Bush.