The Senate should deny Miers

Yesterday featured a flurry of disappointed opinion regarding the nomination of Harriet Miers to the Supreme Court — most of which, by the way, did not question Miers' abilities so much as the president's priorities.

Why would George Bush nominate someone we know nothing about, someone with no judicial experience, when several outstanding judicial nominees were available? If he had no faith that the Senate would confirm someone like a Michael Luttig or Janice Rogers Brown, why would he risk dispiriting conservatives (thereby risking the Republican congressional majorities in 2006) by nominating an unknown with suspect credentials? Why couldn't he see that nominating an old friend (again) would be perceived — not just by hard-left Democrats but by an increasing number of independents and Republicans — as a bow to cronyism at the expense of quality?

Relax, several other conservatives said — Bush has earned our trust with the track record of his other picks. Trust him with Miers.

Hugh Hewitt called it a "solid, B+ pick." (But why get a B+ when an A was available for the same effort?)

James Dobson went on the word of others — some he knew, some he didn't — to proclaim his support. (I appreciate a lot of what Dobson stands for, but when he's one of the few people endorsing Miers, is that really desirable?)

She's pro-life, some have said. She's an evangelical Christian, others claim. (All great, but are those qualifications for the highest court?)

Other justices went to the bench with no judicial experience, so it's no big deal. (I understand, but it's not as if there was a dearth of quality currently on the bench.)

Bush wanted someone on the court who has — by virtue of her legal arguments in favor of the president's wartime efforts — real-world knowledge of the separation of powers. (But can she separate her devotion to the president, the man for whom she's worked over the course of two decades, from her responsibilities to the Constitution?)

I know, I sound like Charlie Schumer now, but for some reason these concerns are more urgent with Harriet Miers because of her evident lack of other relevant experience. Maybe Bush is afraid that relying on the opinions of others will result in another Anthony Kennedy or David Souter, but that argument implies that Bush doesn't trust those he's placed in positions of influence around him. If he thinks himself a good judge of character, then he should trust those whose character has caused him to listen to their judgment. He should do exactly what the Constitution asks the Senate to do — look at the evidence, written and oral, and make a decision on whether Justice A is qualified to sit on the court and accordance with the president's priorities.

Harriet Miers may end up being an outstanding justice from a conservative perspective. But we have no idea, and the hearings will likely not tell us anything of value. The Ginsburg Principle has left senators with no other choice but to gamble on the word of the nominating president, so Democrats will likely oppose Republican nominees, and vice versa in the future.

The clincher came in this morning's Wall Street Journal, in an OpinionJournal.com piece written by Boston University law professor Randy Barnett. I make the assumption that Barnett is a liberal and thus had ulterior motives for the piece, so I take that into account as I read; still, he makes a strong argument against the C word.

First, he quotes Alexander Hamilton in No. 76 of the Federalist Papers:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure." (The italics are Barnett's.)

Barnett continues:

Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch. A longtime friend of the president who has served as his close personal and political adviser and confidante, no matter how fine a lawyer, can hardly be expected to be sufficiently independent--especially during the remaining term of her former boss.

By characterizing this appointment as cronyism, I mean to cast no aspersions on Ms. Miers. I imagine she is an intelligent and able lawyer. To hold down the spot of White House counsel she must be that and more. She must also be personally loyal to the president and an effective bureaucratic infighter, two attributes that are not on the top of the list of qualifications for the Supreme Court.

To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

I think it's a stretch to say that nothing in her background has caused her to consider the constitutional complexities of federalism or other key issues. However, I think his argument is valid regarding Miers' ability to separate her devotion to Bush from her devotion to law. I think his concern — drawn from Federalist No. 76 — about a nomination based mainly on "personal attachment" is an argument that will gain a lot of traction both with Democrats and with squishy Republicans like Lincoln Chafee, Susan Collins and even Arlen Specter.

Some will ask: Don't you trust Bush? My answer is: yes. But. The Supreme Court has been listing left for 40 years; opportunities to right the ship come along too rarely to gamble on an unknown. All we know about Harriet Miers is that she's a friend and trusted advisor of the president.

That's not enough for what might be a once-in-a-generation opportunity. The Senate should send President Bush a message, and it should be this: Harriet Miers is a nice lady, but we're not willing to risk the judiciary on a nice lady. Enough with the Cronyism. Send us a clearly qualified candidate.