Will I ever write about anything else again?
Citing, among other things, this op-ed and having this NYT article in the back of his mind, Ken Masugi reminds us of the unavoidably political dimension of the fight to restore a constitutional judiciary.
Yes, I think that this fight could have been waged with another nominee sitting across from the Senate Judiciary Committee, but that is not going to happen. Bush will not withdraw his nomination. What makes anyone--save for those on the Left--think that the defeat of Miers will produce a jurisprudentially more congenial replacement nominee? Consider this: if the Miers nomination timetable follows the conventional schedule, the Senate Judiciary Committee would likely vote in early December, with a Senate vote following in mid-December. If the nomination fails, the pressure on the President to name a filibuster-proof "consensus" nominee comes into play. After all, once we get into the new year, the impending fall elections start dominating the political scene. And if the Democrats think they can regain control of the Senate from a weakened Republican Party, they will likely do all they can to slow the process down. We could end up with a nominee the Post and the Times (not to mention the Harvard and Yale law faculties) will welcome as a "moderate."
Obviously, as well, should Republicans lose control of the Senate, the prospect for future attractive judicial nominees virtually disappears.
All this leads me to swallow my disappointment and stick with Miers at least through the hearings. There is no realistic prospect of a nominee I like better being produced by the process currently in train. And I am not at the moment convinced that anyone likely to be elected in 2008 will nominate men and women more faithful to the intentions of the Founders. If President Bushs judicial legacy is as important as people say (and I think it is), then we have to hope that he succeeds and help him along. The realistic alternative is, I think, far worse.