I am perhaps the last conservative blogger to weigh in on the president’s nomination of Harriet Miers to the Supreme Court. On the day the appointment was announced, I didn’t say much because I didn’t want to draw attention away from Bruce’s clever post on the topic (which garnered him much well-deserved acclaim in the blogosphere). And that I got busy with papers, classes and other things.
Like the folks at Powerline, I was disappointed with the choice. While Ms. Miers is, no doubt, an excellent attorney and, in many ways, a legal pioneer, rising in the profession at a time when there were few successful female attorneys and while she is loyal to a president whom I (by and large) support, I had hoped the president would pick someone like Miguel Estrada, Michigan Supreme Court Justice Maura Corrigan or Circuit Judge J. Harvie Wilkinson III, the latter my first choice. I hoped for someone who had not only a fine legal mind, but had also shown a keen understanding of the types of issues likely to reach the U.S. Supreme Court. The president thus “missed an opportunity to drive home with the public the fact that the most brilliant and most principled thinkers in the legal profession are conservatives, not liberals.”
Basically, I think President Bush took the base for granted on this one. After John Roberts’ nomination was well-received by all but the most extreme conservatives, the president may have gotten a little cocky and assumed conservatives would support whomever he tapped for the Supremes. He thought they would see Miers’ loyalty to him as loyalty to conservative principles, so when Senate Minority Leader Harry Reid liked the idea (of Miers’ nomination), the president may have thought he had a consensus pick. And ever eager to be a united, he named her.
In taking the base for granted, the president committed what is arguably the biggest blunder of his administration. The fact that he is trying to reassure conservatives after he announced the pick proves that he and his aides did not do their homework as he was considering Miers’ appointment. According to the Wall Street Journal‘s John Fund in yesterday’s Political Diary, her nomination was not properly vetted. She “was not interviewed by several key players who were deeply involved in the Roberts selection,” including “Karl Rove, Vice President Cheney and Attorney General Alberto Gonzales.” This morning, Lorie Byrd noted that the “lack of advance work led to the huge failure to anticipate the reaction of many to the Miers nomination.”
While I will wait until her confirmation hearings to make up my final decision about whether or not she should be confirmed, the more I hear about her, the more I lean against her confirmation. Hugh Hewitt‘s support at first convinced me that she would be a responsible conservative jurist. But, as I saw that her most enthusiastic support for her came from social conservatives, II became increasingly troubled by the appointment.
To be sure, a number of conservatives whom I respect including the Federalist Society‘s Leonard Leo have backed her. Leo points out that “she has helped carry out the President’s promise to find and select judicial nominees such as John Roberts who will interpret the law rather than make it up.”
If his track record on judges is a guide, Mr. Bush deserves some deference. His appellate nominees have been uniformly solid, and often distinguished. One of those nominees was John Roberts, who at 50 years old is now the Chief Justice. For five years Ms. Miers has been part of the President’s judicial-selection committee that promoted those nominees, and for the last year was its chairman.
The fact that Mr. Bush has known Ms. Miers so well and for so long also makes it unlikely that she is another David Souter, who was sold to George H.W. Bush as a “conservative” by Warren Rudman but morphed into a liberal on the bench. Assorted Texans who have more political credibility than Mr. Rudman–such as state Supreme Court Judge Nathan Hecht–also speak highly of Ms. Miers as a legal mind and assert confidently that she is a conservative constitutionalist.
All that said, the more I read, the less I am certain. For example, Patterico concludes that her response to one question on a Senate Judiciary Committee questionnaire “sounds like she is saying that the Equal Protection Clause requires that members of protected classes be represented on legislative bodies in numbers corresponding to their proportion in the general population.” (Via Malcontent‘s adorable Robbie.)
While some conservatives have been a bit harsh in their criticism of the president for making this pick — and of Ms. Miers as well, on the whole, I think the debate has been civil and good for the conservative movement. Indeed, Rush Limbaugh says it shows the “strength of the conservative movement.”
Just a few days after the nomination, however, my Athena (Peggy Noonan) suggested that the “headline is not that this White House endlessly bows to the right but that it is not at all afraid of the right.” Should conservatives conclude that she is not qualified and should Republican Senators join Democrats in voting against her confirmation, this may well remind the president how much he needs the base. That he can’t take conservatives for granted.
And the White House has not done a good job of reassuring the base about this nomination. Indeed, the president’s aides have actually hurt their cause when they criticize many who normally support him, calling some “sexist” and “elitist,” for opposing this nomination. It looks like it’s going to be up to Ms. Miers to use her confirmation hearings to reassure the base — and convince Senators (and the American people) that she’s qualified for the job.
While I currently lean against the nomination, I do believe that Harriet Miers — and the president for that matter — deserve the benefit of the doubt until those hearings.
In failing to properly vet Ms. Miers and in failing to adequately consult with his conservatives supporters, the president blundered badly in nominating her for the Supreme Court. He took the base for granted, ignoring those who have defended him against mean-spirited assaults from Democrats and their allies in the media, who helped him win re-election and worked with him to achieve many of his goals since he first won election.
-Dan (AKA GayPatriotWest): GayPatriotWest@aol.com