As you know, I’ve been looking for a convincing argument that I should support Harriet Miers, or at least withhold judgment. And I keep coming up empty. Virtually every brief for Miers I have read so far contains off-putting arguments that have me shaking my head right away.
With Paul Mirengoff’s op-ed in the Weekly Standard, titled Holding Our Fire–And Our Breath, I have finally found an argument that is worth serious consideration.
Am I convinced? As I began to write this post, I wasn’t sure. I am now.
In the extended entry, I walk you through the piece, sharing my reactions as I go. By the end, you’ll know how I feel about whether the Miers nomination — as flawed as it clearly is — should be supported or rejected by conservatives.
This is a bit of a long post, but I think it’s worth your time. Mirengoff’s piece is something you need to read anyway. It’s really excellent. And I think my thoughts in reaction to it are worth sharing. If I didn’t, I wouldn’t have spent so much time typing them up.
Paul builds credibility for his ultimate conclusion by rejecting the unconvincing argument that we should simply trust Bush’s judgment:
THE DISAPPOINTMENT many conservatives feel over the nomination of Harriet Miers to the Supreme Court will not vanish unless and until Miers begins writing solid conservative Supreme Court opinions. In the absence of such opinions, there is little reason to believe that the Miers nomination fulfills President Bush’s stated desire to nominate Justices in the mold of Scalia and Thomas. In fact, we cannot even be highly confident that Bush has nominated a reliably conservative vote, as opposed a swing vote in the O’Connor or Kennedy style.
Some dispute the latter proposition. They argue that Bush is in the best position to know what kind of Justice Miers will be, so that if he assures us that Miers is a judicial conservative, we have no reason to doubt his word.
This argument fails to instill great confidence. A president usually deals with his White Counsel at a very high level. It’s not likely that Bush (a non-lawyer) and Miers have had in-depth discussions about constitutional law. Thus, while Bush might be in a position to know very generally that Miers is a conservative as opposed to a liberal or a centrist, he’s not likely to know whether she has a solid conservative judicial philosophy of constitutional adjudication, much less what she thinks about specific constitutional issues. It’s also disconcerting that Bush has defended Alberto Gonzales, Miers’ predecessor as White House counsel, from conservative critics, apparently including him among those who “will strictly interpret the Constitution and not use the bench to legislate from”–essentially the same endorsement he now has given Miers. Given Gonzales’s record, few conservatives regard him as a reliable vote over the long haul.
Precisely. Bush forfeited any valid claim to blind trust in his pick with his serious consideration of Gonzales. Paul builds further credibility by acknowledging that Bush could have done better:
In any case, conservatives justifiably feel disappointed that they should have to rely solely on the president’s legal and psychological acumen as they try to become comfortable with his nominee. There were at least two dozen candidates, including women, African-Americans, and Hispanics, whose conservative bona fides would have been apparent to the naked eye. Bush’s rejection of these candidates in favor of Miers feels like cronyism or political weakness.
Paul next moves to the question: now that Bush has stuck us with this problem, what do we do about it? That, after all, is the real issue. He begins by noting his opinion that there is a real possibility Miers could be defeated:
AS THE CONFIRMATION PROCESS UNFOLDS, however, the issue for conservatives no longer will be whether we are disappointed, but rather whether Miers should be confirmed. The question is more than academic–for it is possible that without the support of conservative Senators the nomination will fail. To be sure, some Democrats, including Minority Leader Reid, have made favorable utterances about Miers. However, at her confirmation hearings, Miers almost certainly will not give the sort of assurances on Roe v. Wade that Democrats will demand. And unlike with Roberts, Democrats will not feel constrained by public opinion to vote for Miers–she lacks both Roberts’ record and his charisma. The only pressure Democrats will feel to vote for Miers is the sense that Bush might nominate someone worse from their perspective. But the opportunity to deal Bush a huge defeat, coupled with pressure from the abortion lobby, may prove irresistible. Thus, a coalition of Democrats and conservative Republicans could possibly sink this nomination in what could be the oddest confirmation battle in memory.
I find it implausible that Miers could be defeated, but I suppose it’s a possibility, however unlikely. Paul now says:
On the currently available information, conservative Republican Senators shouldn’t go there.
Since Paul has made such a compelling and credible case up until this point, I find myself interested. I’m sitting up in my chair and paying attention. So far, everything Paul has said is spot-on. Yet he still says we should support the nomination. I’m interested — aren’t you?
Two questions control the confirmation issue: Is Miers qualified and should she be rejected on ideological grounds? At this juncture, neither question strikes me as very close. Miers has achieved just about everything a lawyer can accomplish–head of a substantial law firm, head of the state bar association, and top legal adviser to the president. She also has a background in local politics. Only by insisting that a Supreme Court nominee possess either judicial experience or a portfolio of scholarly writings can one pronounce Miers unqualified. But this has never been the standard, and it’s not clear why (ideological considerations aside) Republicans should invent a new standard with which to deal a blow to a Republican president.
On the merits, moreover, judicial experience or legal scholarship should not be a requirement for the Supreme Court Justice position. This background may well be highly desirable, and not just for purposes of intelligence gathering about a nominee. Yet some knowledgeable commentators think it’s highly desirable for some justices to possess a more practical, less rarified background. Reasonable minds can differ, which suggests that the president should have the option of appointing outstanding lawyers with no judicial or scholarly experience.
This isn’t a bad argument. Miers’s qualifications are in many ways comparable to those of some other Justices who have served on the Court. Many have argued in recent days that it would be a breath of fresh air to have someone on the Court who is a less academic type. According to the often-suspect Newsmax (h/t Big Lizards), even Justice Scalia has recently said so.
In light of this history, let me give an answer to the question: why should Republicans apply a “new standard” on qualifications?
First, understand where I’m coming from. I just don’t think we can afford to take chances any more. Republicans keep winning elections, and keep getting erratic results on our Justices. For every Scalia, we get a Kennedy. For every Thomas, we get a Souter. We can’t continue going down this road.
With that understanding, when I look back at the Justices we’ve had, I’m looking at the characteristics that separate the good from the bad. And I’m unable to find a Republican-nominated judge who was a strong and principled judicial conservative who was as lacking as Miers is in familiarity with issues of constitutional law.
So, while Paul separates the issue of qualifications from that of ideology, I see them as connected, to a degree.
I don’t want to overstate the case. This is not to say that you have to have been a judge for years, and it’s not to say that those who have been will be conservative. Being highly qualified in an academic or intellectual sense doesn’t make you a judicial conservative. And the connection I’m making is not crystal-clear.
But look at the history.
Most of the Justices from the past few decades have been quite poor, in my opinion. Scalia and Thomas are the major exceptions, and they were judges on the D.C. Circuit before taking their seats on the Supreme Court. Rehnquist, while not as solid as those two, was probably the third best. He was not a judge before joining the Court, but he had some relevant experience and qualifications: he was first in his class at Stanford Law School, and clerked for Justice Jackson on the Supreme Court.
If someone could show me a recent example of a great Supreme Court Justice with no judicial background and no background clerking for the Supreme Court, I might feel differently. But you can’t.
Some may argue that Clarence Thomas wasn’t on the D.C. Circuit for that long. Indeed, that is the best argument against my position. The unqualified success of the Thomas nomination is one of the best arguments that Miers supporters have for their hopeful outlook. But my response to that is: put Harriet Miers on the D.C. Circuit for a year, and let’s look at her opinions then. At least we’d have some kind of track record, albeit a limited one.
Without that background, Miers is a candidate whose background is like that of Lewis Powell, Byron White, or Sandra Day O’Connor. I consider Powell and O’Connor to have been weak Justices, overly fond of multi-part balancing tests and splitting the baby. And White was too erratic, and far too prone to making decisions based upon personal views rather than based on a consistent view of the law. Granted, he was one of only two dissenting votes in the original Roe decision. While I respect that fact about White, he is nevertheless not my idea of the ideal Justice.
Again: I just don’t think we can afford to take chances any more. We’ve been burned too many times.
So: even if Miers-style qualifications were enough in the past, there is a reason to change that now: because something has to change.
But my argument has strayed into questions of ideology, and Paul hasn’t addressed those yet. He does in the next paragraph:
The argument that conservatives should reject Miers because she doesn’t seem to be the right kind of conservative, and may not be a conservative at all, seems problematic as well.
Ah . . . the meat of the argument! Why is that?
For the past four years, conservatives have argued that ideology does not constitute a proper basis for voting against a president’s qualified nominees. We have deplored Democrats who voted against qualified mainstream conservatives. We would have become apoplectic had Sen. Arlen Specter not supported a conservative nominated by his party’s president. On what principled basis, then, can conservatives now vote down a nominee who is either a moderate or, more likely, some sort of a conservative? Miers plainly is not “outside the mainstream.”
As some have put the same argument: how can a Senate Republican who voted for Ginsburg possibly vote against Miers because he thinks that she’s not conservative enough?
That argument has superficial appeal — which evaporates the moment you stop and think about how utterly insane it is. Are you telling me that if George W. Bush were to nominate someone as liberal as Ruth Bader Ginsburg to the Court, conservatives would have to vote for that person?
Conservatives voted for Ginsburg because they recognized that elections have consequences. When the public votes for a President, everyone understands that one of the things they are doing is voting for Supreme Court nominations. To oppose a nominee because their ideology lines up with the President’s, but not with yours, is to deny the effect of the voters’ choice.
It’s a far different issue when a President promises to choose someone with a particular judicial philosophy, and then nominates someone who shows no sign of being such a person. Voting against such an individual would not be denying the effect of the voters’ choice. Senators owe an independent duty to their own constituents as well as to the voters of the country as a whole. If they believe the voters’ message is not being heard by the President, and the Constitution gives them a role in helping that voice be heard, they do not step out of line by voting against the President’s pick.
Say you’re a Senator. If the President ran for office on the strength of a promise not to raise taxes, and now urges Congress to pass a tax hike, do you owe that decision unquestioning deference because he’s the President, and he got elected? No, for two reasons: 1) that’s not what the voters voted for, and 2) you owe a duty to the people you represent as well.
In the context of judicial nominations, I believe the President deserves substantial deference in such matters. The choice is his to make. But it is also the Senate’s to accept or reject, and Senators should not feel constrained in the slightest by the fact that they voted for someone like Justice Ginsburg, when a Democrat President was in the White House.
However, the shrewdest conservative legal thinkers have eschewed the “mainstream” test. They tend to ask not whether a nominee is outside the political mainstream but whether she is faithful to the Constitution as written. Since judging should be about fealty to the law, not substantive political outcomes, this formulation is sound in theory. And it has the added virtue of enabling conservatives to maintain a principled opposition to mainstream liberal, moderate, and maybe even insufficiently conservative nominees.
This is how I feel, which lines me up with the “shrewdest conservative legal thinkers” — even if I’m not one of them.
But avoiding a political phraseology is not the same thing as avoiding politics. And the politics of the confirmation process tell us that a standard under which conservative senators vote against nominees in, say, the Sandra Day O’Connor mold, is a standard that might well lead non-conservative senators (that is to say a majority) to vote against the next Antonin Scalia.
Here, Paul is saying that, even though there is a genuine distinction between political ideology and the ideology of judicial conservatism, the public isn’t going to understand this distinction. As a result, voting down Miers will provide a precedent for rejecting conservatives in the future on the basis of political ideology.
This strikes me as naive. Does Paul think that Democrats are going to vote for the next Antonin Scalia? The halcyon days of someone like Scalia sailing through the Senate with overwhelming majority support are over, my friend. That all ended with the defeat of Robert Bork in 1987. The idea that we need to cave on this nomination now because fighting it would set a bad precedent is reminiscent of the arguments used by those who supported the Gang of 14 deal.
I don’t find this a convincing argument. True conservatives should not be afraid of their own shadows. We are not pursuing political ends, and we shouldn’t surrender our principles now on the fear that Democrats are going to twist our position in the future and use it to vote against staunch judicial conservatives. They’re going to do that anyway. Let’s get the good people in now, while we have a chance.
Unfortunately, Paul’s piece is drawing to an end, and it is even less convincing there:
In the case of Harriet Miers, though, we are not even talking about someone in the O’Connor mold–we are talking about someone who might be another O’Connor but is just as likely to vote with Scalia in the vast majority of big cases. In this situation, it seems imprudent to blow up the confirmation process—and possibly the Bush presidency and the Republican party–to block her nomination. Thus, conservative senators should be prepared, barring new and damning information, to vote in favor of Miers. The rest of us should be prepared to hold our breath until we start seeing what she writes.
There are too many unsupported assertions in this paragraph. We have no way of knowing whether Miers really will vote with Scalia in the big cases. And it is pure speculation to posit that blocking her nomination will “blow up” the Bush presidency and the Republican party. If Senators reject Miers as someone not supremely qualified for the position, and demand someone who is truly top-notch, it may be a setback for Bush — but it could actually strengthen the standing of Senators in the eyes of a public that is wondering whether Miers got the nomination because she is close with Bush.
And so we’re done. I can’t imagine anyone taking a better shot at persuading me than Paul has done in this piece. I am ready to declare my position.
Unless something changes drastically, I will be opposing the Miers nomination.
This position is not set in stone. If something emerges before or during the hearings to persuade me to change my mind, I’ll be open to it. But I think it extremely unlikely that we’re going to learn anything meaningful between now and the time to vote. And I think we need to put pressure on the President (and Miers herself) to withdraw the nomination, to avoid the added embarrassment that would likely be caused by a defeat in committee or on the Senate floor.
I don’t think this is going to make a difference, by the way. I have very little doubt that she will be confirmed. But — absent some unexpected surprise — she’ll have to do it without my help, and indeed in the face of my active opposition.
UPDATE: Ramesh Ponnuru makes a similar point here.
UPDATE x2: Jeff Goldstein has more.
UPDATE x3: Thanks to Instapundit for the link, and welcome to Glenn’s readers! I have been blogging the Miers nomination for the past several days; for more, go to my main page, or consult my judiciary category. Some of my posts are short — I promise! My lead post today elaborates on why it would be a disaster to have another Justice in the mold of Lewis Powell. If you haven’t read The Brethren before, the quotes will stun you.