Why I'm Disappointed in the Miers Pick

Oh, where to begin. Like many conservatives, I had been eagerly awaiting President Bush's choice to replace the retiring Sandra Day O'Connor. After the brilliant nomination of John Roberts, I had high expectations that Bush would once again appoint someone with impeccable legal credentials and a proven track record of deeply originalist constitutional interpretation.

Instead, Bush nominated his personal lawyer. Harriet Miers is no doubt a fine person and a capable attorney, but she is far from the towering conservative intellect for which I had hoped. She was on no one's short list of potential candidates, except for President Bush's (and Harry Reid's, which I'll get to in a moment). And so, without further adieu, here is why I am deeply, deeply disappointed in the Miers pick:

1. There were so many other, better-qualified candidates available. For nearly thirty years, conservative legal scholars have been making headway into a profession that was once dominated by liberal judicial activists. This movement has reached maturity in recent years, as such respected conservatives as Chief Justice Roberts, religious freedom expert and Tenth Circuit Judge Michael McConnell, Fourth Circuit Judge Michael Luttig, and recent appellate court additions Janice Rogers Brown and Priscilla Owen have gained noteriety for their firm grasp of the Founders' original intent. All are widely regarded as leading conservative intellectuals and constitutional scholars. All reflect the professional excellence needed to serve on the highest court in the land. Bush could have nominated any of these fine candidates and won renewed accolades for his commitment to placing quality judges on the federal bench, as he did with the Roberts nomination.

The selection of Harriet Miers, on the other hand, is as disappointing as the Roberts pick was brilliant. She is not widely regarded as a leading conservative legal scholar, and her rulings, even if they do turn out to be reliably conservative, are unlikely to establish lasting precedents of the kind that will reshape American jurisprudence for decades. Bush missed a prime opportunity to nominate such a judge.

2. Bush is asking, yet again, for conservatives to trust him, but this is a moment in which he should be vindicating that trust, not taking advantage of it. Conservatives have been waiting and preparing for this opportunity to return the Court to its foundation of constitutional originalism for years, and they expected a nominee whose conservative and legal credentials would be self-evident. Harriet Miers is not that nominee.

But conservative disastisfaction with Bush runs deeper than this Supreme Court nomination. For years, conservatives have overlooked some of the Bush administration's violations (campaign finance "reform," growing federal deficits, and so on) of conservative principles in the hope that their patience would be rewarded with an outstanding Supreme Court selection. Now that that hope seems to have been dashed, conservatives are much less willing to look past Bush's shortcomings in other areas. This nomination may have finally broken the dam that held back conservative criticism of the administration until now.

Another factor that rankles conservatives is that sneaking through a "stealth" nominee based entirely on trust is, with a 55-seat Republican majority in the Senate, no longer necessary. Since virtually any Bush nominee is assured confirmation, why take the chance on a nominee who has no discernible track record of reliable conservatism and constitutional originalism? Why not nominate a judge who is widely known for holding conservative views of the law? The specter of the Souter nomination, in which a little-known and supposedly conservative nominee turned out to be an extremely liberal justice in reality, still haunts conservatives. There is an element of risk involved with all Supreme Court nominations (justices are notorious for drifting leftward after taking office), but the Miers pick is an unnecessary one.

3. The President's choice of his personal lawyer and friend smacks of blatant cronyism at time in which his personnel decisions were already coming under heavy--and mostly warranted--criticism. A common accusation levelled by Democrats against the Bush administration is that it hands out appointments based on personal familiarity rather than professional ability. With the Miers pick, President Bush went a long way in vindicating such criticism. Does anyone really believe that former Dallas city councilwoman and Texas lottery commissioner Harriet Miers would now be a Supreme Court nominee had she not been personal friends with the President? That is why Bush's claim that Miers was "the best he could find" rings so hollow, because it is so obviously and demonstrably untrue.

4. Harriet Miers lacks the experience and credentials necessary for a lifetime appointment to the Supreme Court. This is not to say that she lacks the intelligence or capacity to make good rulings, but there is little in her background that would suggest she has studied constitutional law and theories of interpretation beyond law school exams. She has never argued cases in front of the Supreme Court, nor has she ever been a judge. These by themselves are not disqualifiers, but when combined with her general lack of a written record beyond President Bush's vague assurances, her credentials stand in stark contrast to the potential nominees I mentioned earlier.

5. Harry Reid recommended and supports Miers' nomination. Often you can take the measure of a person by who lines up to oppose them. A few months ago, Senator Reid, the Democratic minority leader, submitted to President Bush a list of potential nominees who would be "acceptable" to the precious sensitivities of Democrats. Miers was on that list. When her nomination was announced, Reid immediated praised her and thanked President Bush. Reid's endorsement was the third listed in a White House press release trumpeting Miers' "bipartisan" support. Keep in mind that Reid found even the eminently sensible John Roberts to be too "right-wing" for his liberal tastes. Senator Charles Schumer, a long-time foe of conservative judidical nominees, has also voiced his relief at the Miers nomination.

When you realize that Miers was on the preferred list of the Democratic minority leader, and not on the preferred list of any conservatives, you may begin to understand why conservatives are so suspicious.

6. With his poll numbers already sagging, President Bush chose to undermine his only remaining source of support. It has not been a good year for the White House politically. Continued turmoil in Iraq, allegations of corruption among high-ranking Republican officials, high gas prices, and the Katrina response debacle have all combined to force Bush's approval rating to record-low levels. Much of the lost support stemmed from disillusionment among conservatives who were uneasy about the free-spending Republicans in Washington. This nomination was an opportunity to--among other things--stop that slide by shoring up conservative support. Instead, it has accelerated it. To the extent Karl Rove had a role in this decision, I think his political skills have been vastly overrated.

7. By appointing a barely qualified woman, President Bush has surrendered to the forces of identity politics that view gender and race as more important than ability and merit. Had Bush nominated an obviously qualified woman--such as Priscilla Owen or Edith Jones--no one would have objected, save for the radical feminists who presume to speak for all women everywhere. But Miers' sole qualifications seem to be her gender and her friendship with the president. If Miers were a man, does anyone seriously believe she would be the nominee right now? Such an obvious "affirmative action" choice weakens both the Court and the advancement of women by passing over qualified female judges in favor of an unqualified crony.

And there you have it. As for her chances for confirmation, I would be very, very surprised if the Republicans tried to oppose one of the President's nominees. The Democrats may put up a perfunctory show of opposition for a while, but privately they realize that they dodged a bullet on this one. Barring any unexpected revelations in the confirmation hearings, probably the only way the Miers nomination could be stopped is if conservative outrage boiled over to the point where she voluntarily removed her name from consideration, which is unlikely.

But maybe I've got it all wrong. Maybe Harriet Miers has a conservative judicial philosophy of the highest caliber, and a year from now Ralph Neas and NARAL and the ACLU will rue the day they ever let her slip through. I sincerely hope so. The confirmation hearings, which are scheduled for November, may hold the answer. But right now, the Miers confirmation looks like another missed opportunity for President Bush, at a time when he needs all the victories he can get.