ConfirmThem

By DanCT Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

Carol is right that Gingrich offered more in support of the Miers nomination than simply "trust the President" in his op-ed today. However, what struck me about the op-ed was how thin the other arguments are. He apparently realizes this and explicitly identifies "trust the President" as his strongest argument in support of the nomination:

And perhaps most important, Mr. Bush has worked closely with Ms. Miers every day since his days as governor. The president knows her and knows what kind of justice she will make.

In his three subsequent (and concluding) paragraphs, he elaborates on that theme:

Mr. Bush governs with a very straightforward methodology: He says what he's going to do. He does it. And then he does it again. This has been true with taxes, the war on terror and now with judges.

In both presidential campaigns, the president repeatedly promised to appoint justices like Clarence Thomas and Antonin Scalia to the Supreme Court.

With the president's knowledge of Ms. Miers, his stated commitment to rebalancing the judiciary and his conservative record - not only in appointing judges but on big decisions in general - conservatives should feel comfortable in taking the president at his word that he has just now delivered another nominee in that tradition.

To be fair, some of the points that Carol raises do deserve discussion.

(1) The President has a history of making excellent appointments to the federal courts — and being willing to withstand controversy to do so.

This is simply a variation on the "trust the President" argument that is getting plenty of discussion already.

(2) In opposing the ABA’s support of abortion, including taxpayer-funded abortion, Harriet Miers showed the kind of tenacity that suggests she’s “not for turning� — in contrast to the Supreme Court justices some conservatives fear she’ll resemble.

Her political views are not what are at issue. The question is her jurisprudence, which, in reality, we don't know a blasted thing about.

(3) Despite divisions within the Texas bar on the topic of abortion, Harriet Miers was able to win a consensus that the ABA should put the topic to a vote of the membership. (And such consensus building skills are important on the Court; even the most brilliant jurist’s impact is diminished if, by his behavior, he drives other potential “concurrers� into dissent by his behavior)."

No doubt that a cordial, respectful demeanor and skill at consensus-building are important on the Court, but you've got to admit this is a pretty weak demonstration of those skills. Let's file this away in our minds and watch the hearings for more evidence of her consensus-building skills. Such demeanor and leadership skills are in indeed on display in the hearings, and it is one reason why Roberts shined and Bork fizzled. It also partly explains why the President hesitates with Luttig.

However, first things first. without good, solid, conservative jurisprudence, all the consensus-building skill in the world will not make her a good pick for the court. If she passes muster on jurisprudence, then details like demeanor and consensus-building skills would be icing on the cake. But, at this point, we know next to nothing about either her jurisprudence or demeanor.

(4) She has a diversity of experience — and would be the only justice who didn’t come straight from the bench. I’d add that even the fact she’s a trial lawyer is important. It means that she understands the difficulties in practical application of “squishy�, balancing-test jurisprudence.

The same could be said about John Edwards, Peter Angelos, and a whole host of others whom we would not want to see on the court. If her judicial philosophy and temperament are solid, then we can think about "diversity" as possible icing on the cake.

At the same time, though, I think you'd agree that not all trial lawyers are immune from "squishy", balancing-test jurisprudence. We should judge Ms. Miers by the content of her own character rather than her group characteristics.

(5) Harriet Miers was instrumental in selecting conservative judicial nominees. For my part, I’d add that the President may well have become acquainted with her philosophy by hearing whom she thought merited nomination and why.

And Salieri could recognize Mozart as a great composer, but that didn't make Salieri himself a great composer!

We don't know Ms. Miers' role in selecting conservative judicial nominees. Gingrich mentions Priscilla Owen and JRB, but Harriet Miers was Assistant to the President and Staff Secretary then and may not have had any role at all. We do know that Mr. Gonzales has played an instrumental role in selecting judicial nominees for GWB, but I don't think anyone would be touting this as one of his strongest qualifications. Your addendum in (5) is once again a variation on the theme of "just trust the President" --- mightly thin gruel. By acknowledging it as his important argument, Gingrich punted.

BTW: Gingrich also missed a critical argument in his op-ed, viz. it is the President who nominates and his choice should be given great deference. However, the Senate's role is to provide checks against cronyism and corruption. I'm dubious that there'll be any finding of corruption, but the cronyism charge is real. Ms. Miers' personal friendship with the President undoubtedly played a major role in her getting the nomination, yet she is at best marginally qualified. Her qualifications should be closely scrutinized, and I hope she can pass with flying colors. Until we learn more -- a lot more -- skepticism is warranted.