Picking the Miers Scab

According to Robert Novak, President Bush told Senators that he was nominating California Circuit Judge Consuelo Callahan to replace Sandra Day O’Connor before he decided on Harriet Miers. Callahan, who enjoys the support of home state Senators Dianne Feinstein and Barbara Boxer, is a moderate pragmatist of dubious accomplishment. I guess we were lucky to get Miers after all.

But wait! Miers' supporters cite her responsibility for vetting all the SCOTUS nominees as a qualification and a clue to her judicial philosophy. Well, her fingerprints are all over the Callahan near-disaster. Just when influential blogs such as NRO, Power Line, and Captains Quarters have adopted a resigned wait-and-see-the-Senate-hearings attitude to the Miers fait accompli, along comes more salt in the wound. I am not sure that Miers will be voted out of a committee on which Sam Brownback and Tom Coburn sit, especially if James Dobson is subpoenaed to testify.

Bush defenders keep reiterating that he has never let us down with judicial nominations before and asking us to trust the esteemed Dr. Dobson. Theresa Kiihn, a conservative of faith, offers the best explanation that I have read regarding why Evangelical credentials alone are not enough. There is one key distinction between Bush's nominations to the Supreme Court and nominations to lower courts. Bush deserves credit for all the distinguished lower court appointments that were, however, processed by his staff. The difference here is that he has taken a hands-on approach to the SCOTUS nominations and revealed himself to be more persuaded by an emotional connection and religious fellowship than judicial philosophy.

Reportedly what elevated John Roberts to the top of the A list was the Putin standard. Bush caught a glimpse of Roberts’ soul and found it good. That kind of impulsive vetting is tolerable when the finalists are Roberts and Michael Luttig but alarming when the choices are Miers and Consuelo Callahan.

At the beginning of the week, I speculated that Miers was a punitive pick after conservatives denied Bush his first choice, Alberto Gonzales. Now I wonder if all the lower court nominees were a concession by Bush so that he could put his personal stamp, which is regrettably not of the originalist bent, on the Supreme Court.

I have written here and here that Bush is certain to nominate Alberto Gonzales if there is a third vacancy. Near the end of his radio show last Thursday, Hugh Hewitt warned his audience to be prepared for that exact eventuality, especially if Justice Stevens steps down during this term. That would mean that not one but two White House Counsels in the same administration would be nominated to the Supreme Court.

Hugh disdains the word cronyism. Please give me a better word for it then. Would a President Brownback or President Allen have Miers or Gonzales on their short lists?

For decades conservatives have fought their way up the judicial ladder, enduring personal and professional hardships that we cannot imagine. Rush Limbaugh described meeting Judge Janice Rogers Brown at the 50th anniversary tribute to National Review and Bill Buckley. “She wanted to thank me, and everybody who had been so supportive of her and she said, ‘I want to also thank you for explaining to people what a three-year nomination battle in the middle of a filibuster does to somebody and what that's like,’ and I said, ‘No, you're great. You're a walking lesson. You hung in there and you didn't cave during any aspect of it.’"

Robert Bork, who has paid the highest price of any nominee in modern times for his judicial fidelity, told Tucker Carlson that “it’s kind of a slap in the face to the conservatives who’ve been building up a conservative legal movement for the last 20 years. There’s all kinds of people, now, on the federal bench and some in the law schools who have worked out consistent philosophies of sticking with the original principles of the Constitution. And all of those people have been overlooked. And I think one of the messages here is, don’t write, don’t say anything controversial before you’re nominated.”

The political calculation leading to the selection of Harriet Miers is a repudiation of the conservative judicial movement that spent a quarter century trying to prevent another mistake like President Reagan’s nomination of Sandra Day O’Connor. The lesson learned was that picking diversity and/or pragmatism over judicial philosophy is always a dangerous mistake.

President Bush obviously considered the O’Connor vacancy a diversity slot. Miers, we are expected to believe, will be at least as conservative as O’Connor, which is to say not very. If a nominee is incrementally more conservative than his or her predecessor, that is called progress. Are we doomed to be locked perennially into the current ratio of judicial originalists to activists by this administration? With a farm system abundant with our own home grown strict constructionists of diverse genders, races and religions, there is no justification for wasting even one precious vacancy on a compromise.

Professor Bainbridge used a baseball analogy to explain why Miers is unqualified for the big league. I called her selection Bush’s Bill Buckner moment. At the same time Bush was choosing his second SCOTUS nominee, Ruth Bader Ginsburg hit a sacrifice fly that advanced Bush’s selection one significant step in the confirmation process.

Ginsburg said she agreed with a position taken by federal Judge John G. Roberts during his confirmation hearing. “Judge Roberts was unquestionably right,” Ginsburg said. “My rule was I will not answer a question that attempts to project how I will rule in a case that might come before the court.”

I cannot be the only blogger who threw up a fist and shouted, “Woo hoo!” Surely Ginsburg’s comments made it easier for a well-known originalist to decline to answer intrusive questions during the Senate hearings and therefore empowered Bush to make an openly conservative selection. Instead he made a disappointing choice with far-reaching political implications, as I sought to clarify when I posted this list of questions.

10 Questions for GOP Bloggers Who Support Harriet Miers

1. Last week, as President Bush was deliberating over his second SCOTUS nomination, Justice Ruth Bader Ginsburg voiced approval of John Roberts’ refusal to answer questions potentially related to future Supreme Court matters. When you heard her recorded comments, did you think it empowered President Bush to nominate another well-known constitutional originalist instead of a stealth nominee like Harriet Miers?

2. Does a stealth nomination by a Republican president encourage or discourage prospective candidates who aspire to the Supreme Court to publicize evidence of their judicial philosophy that Democrats might use against them in Senate hearings?

3. Does the nomination of someone that Democrats consider a Republican crony make it harder for Republicans to oppose the future nomination of someone they consider a Democrat crony?

4. GOP bloggers were angry when Miguel Estrada’s religious faith became an issue in his nomination and were prepared to criticize any of John Roberts’ opponents had they done the same. Yet supporters of Miers, including President Bush, are citing her faith as a qualification for her nomination. Isn’t this a double standard that further establishes a nominee’s religious beliefs as a legitimate factor in his/her qualification or disqualification?

5. Justice Antonin Scalia is widely known as a man of faith. Did President Reagan and the conservative media cite his faith as a primary qualification for his nomination?

6. Conservatives expect judges at all levels to separate their personal opinions from their judicial reasoning. Why are Miers’ anti-abortion beliefs relevant to her qualifications? Isn’t believing that abortion is wrong a different issue than believing that Roe v. Wade is unconstitutional?

7. The next time Bush suffers a political setback, does the Miers nomination make it less likely that his conservative base will rise to support him? Does the Miers nomination encourage or discourage Democrats on the Senate Judiciary Committee?

8. Does the Miers nomination make it less likely that the conservative base will support Rudy Giuliani for president in 2008? Does the Miers nomination make it more likely that the conservative base will favor George Allen or Mitt Romney for president in 2008?

9. At this point in the Roberts’ nomination process, the blogosphere had uncovered sufficient information for most conservatives to feel confident and enthusiastic about Bush’s selection. Do you feel the same level of confidence and enthusiasm about Miers? If not, why not?

10. Before her name was added to the public short list of potential SCOTUS nominees, had you ever blogged about Harriet Miers? If you contribute to any other media outlets, did you ever write about or discuss Harriet Miers?