Quag-Miers

Greg at What Attitude Problem? supports Harriet Miers and, in comments below, argues bloggers, especially NZ Bear, have "lost all sense of proportion":

The so-called tally being assembled in TTLB carried no validity -- nor would it were the numbers reversed – simply because the bloggers in the TTLB represent such a minuscule -- indeed, infinitesimal -- portion of the overall voter base that elected the President. Everybody needs to back off and let the process go forward. That's what it is designed for and intended to do. But go ahead and make your stand. Forgive me if I'm less than impressed.

Huh? Yes I'm against confirming Harriet. I'm aware that I'm just a blogger. Obviously NZ Bear's self-selecting scorecard isn't a statistically valid tally of conservatives, Republicans or voters.

No one asserts otherwise. Only Senators vote. Bloggers aim to persuade. We may fail.¹ But, contrary to your intimation, debate in the blogosphere isn't obstructing the Constitutional process. So, Greg, quit jousting at straw-men.

Greg's second argument -- urging the anti-Miers set to "back off" and await hearings -- concededly is plausible and rational. And it's substantially more measured than the response from the Administration and the party, as John Fund detailed in today's WSJ:

Many longtime supporters of President Bush have been startled to get phone calls from allies of the president strongly implying that a failure to support Ms. Miers will be unhealthy to their political future. "The message in Texas is, if you aren't for this nominee, you are against the president," one conservative leader in that state told me. The pressure has led to more resentment than results.

On a much lower level, I've seen similar arm-twisting.

Still, here I stand. And comparing rival lobby groups, the "nays" have the better argument, for several reasons:

1. Why not the best?: Even her most ardent supporters don't claim Harriet's the most qualified nominee (or even, for the sake of argument, the top female choice). Roberts is a stud; Harriet's a dud. Why isn't that enough to nix her?



2. Skill set: A shorthand job description for Associate Justice is: 1) read; 2) reason; 3) resolve; and 4) write. Does Miers measure-up?
   
   
   • Knowledge: The job of Justice isn't a walk in the park. That's why conservatives would fill the bench with brilliant law nerds who know their stuff--like Chief Justice Roberts.
     
     Miers is neither nerd nor knowledgeable. First, she ducked Senator Schumer's philosophic and jurisprudential inquires "saying that she needed to 'bone up a little more' on past Supreme Court cases." Next, her initial response to the Senate was dead wrong: "If a first-year law student wrote that and submitted it in class, I would send it back and say it was unacceptable." Is Miers anticipating on-the-job-training? No wonder the Senate wants more.
   
   
   
   • Candle power: The paramount plank of conservative lawyers is returning the Constitution to its text and framers' conception. Which focuses on process, not outcome. Put differently, "legal reasoning -- not political belief -- is the all-important criterion." Contrary to Hugh Hewitt's claims, how Miers might vote isn't the issue, says George Will:

     Thoughtful conservatives' highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution's meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.

     I agree with Ann Althouse, who requires:

     demonstrable analytical ability. I have seen no evidence of the level of ability that we have an obligation to demand from a Supreme Court justice.

     Given the liberals already on the Court, bias in the media and the Greenhouse effect, conservative judges are condemned to a Red Queen's race, and must run twice as fast merely to keep pace. If confirmed, Miers seems certain to finish ninth.
   
   
   
   • Judicial temperament: Miers has some courtroom experience--but not much. The President touted her trial court experience--yet she was lead trial counsel only four times (response to Question 15(d)(i)). Bush said Miers "argued appeals that covered a broad range of matters." But Harriet never appeared before the Supreme Court, and only argued seven appeals (response to Question 15(d)). Apparently, Bush believes Associate Justice is an entry-level job.
   
   
   
   • Writing: At bottom, the Supreme Court's a factory for precedent. So a Justice's job is to write. Yet, "Ms. Miers has never published anything of note other than vanilla op-ed pieces, and her memos to President Bush are protected by executive privilege," which the Administration (properly) won't waive. (Columnist Charles Krauthammer says the privilege problem provides an excuse for Bush to declare victory and pull out.) This leaves only scraps, which are uniformly rotten. Not to mention chaotic, sloppy and "painful." And, for the most part, poor writing signals poor reasoning.
     
     Charles Fried -- former Judge, Solicitor General under President Carter and current Harvard Constitutional Law prof -- catalogues the consequences of cutting these criteria:

     What is indispensable is that she be able to think lucidly and deeply about legal questions and express her thoughts in clear, pointed, understandable prose. A justice without those capabilities -- however generally intelligent, decent, and hardworking -- risks being a calamity for the court, the law, and the country. . .
     
     The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends. . .
     
     [I]f the justice cannot write then someone is going to have to do that writing for the justice, and that will inevitably be the justice's law clerks. Those law clerks almost to a person are wizards at untangling legal puzzles and masters at setting out the answers in precise if usually turgid and uncompelling prose. But they are also young graduates without wisdom, experience, or a constitutional mandate to help run the country.

3. Keeping promises: Bush repeatedly vowed to nominate only "strict constructionists" in the mold of Scalia and Thomas. I've met Miers, Thomas and Scalia--Harriet can't hold a candle to either. As Feddie at Confirm Them says, "What’s the point of continuing to elect Republicans . . .when they fail to deliver on their promises?"



4. Why give Dems a gun?: While Democrats try turning every institution into a racial and gender "Bantustan," Republicans are the party of principle and meritocracy--not cronies or quotas:

   Democrats, with their zest for gender politics, need this reminder: To give a woman a seat on a crowded bus because she is a woman is gallantry. To give a woman a seat on the Supreme Court because she is a woman is a dereliction of senatorial duty. It also is an affront to mature feminism, which may bridle at gallantry but should recoil from condescension.

   Confirmation would sanction similar less-than-stellar one-from-column-A, one-from-column-B nominations for a future Democrat President. Why set an unprincipled precedent here?



5. Hearings won't help--and could hurt: The upcoming Senate Judiciary hearings are scant comfort. The Roberts confirmation firmly established a nominee's right to be silent on cases and doctrines and shielded from Senatorial fantasies:

   Until now, the judicial confirmation process has never been seen as one where senators can reject a qualified nominee on the ground that he or she isn't the nominee the senators wanted, or the one the senators consider the best.

   So, should Miers answer only "legitimate" questions, a homerun is impossible. But should she expound, she surrenders the precedent (potentially imperiling future originalist nominees). Still worse, given Miers's Constitutional experience, she increases the risk of an all-too-public strikeout. Which could cripple the Administration's legislative agenda.

_____________

¹ Might it be working?:

Strategists working with the White House in support of the Supreme Court nomination of Harriet Miers are becoming increasingly demoralized and pessimistic about the nomination's prospects on Capitol Hill in the wake of Miers's meetings with several Republican and Democratic senators.

FYI--don't seek solace in actual independent surveys. Or the Senate. Or -- could it be true? -- the White House?

(via Instapundit, Right Wing News, The Volokh Conspiracy and Jonah Goldberg)