Miers Is No Roberts (updated 10/4/05)

While conservatives appear to be reservedly content with new Chief Justice Roberts (we’ve yet to see the guy perform his job), they are decidedly less so with Harriet Miers, the President’s nominee to replace Sandra Day O’Conner. Ken Bingham’s blog has a post dated today that is a good representation of conservative thought on the matter.

WSJ OpinionJournal editor James Taranto’s Best of the Web Today says:

“Bush: I'm Just Wild About HarrietAnd Harry's wild about her! "Senate Democratic Leader Harry Reid was complimentary, issuing a statement that said he likes [White House counsel and Justice-designate Harriet] Miers and adding 'the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer,' " the Associated Press reports. "Reid had personally recommended that Bush consider Miers for nomination, according to several sources familiar with the president's consultations with individual senators."

“Last Thursday Reid put out a press release titled "Democrats Demand End to Culture of Cronyism and Corruption." This week the cry of "cronyism" is being heard from conservatives unhappy that the president passed over such distinguished jurists as Edith Jones, Janice Rogers Brown, Michael McConnell and Michael Luttig to elevate his longtime colleague to the high court. Here's National Review's Ramesh Ponnuru:

It's an inspiring testament to the diversity of the president's cronies. Wearing heels is not an impediment to being a presidential crony in this administration!

“David Frum calls the nomination "an unforced error" (ellipsis in original):

I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated . . . I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.

“Glenn Reynolds declares himself "underwhelmed," and that pretty well captures our feeling too. We hope we're proved wrong--but we hate it when we have to say that.”

Conservatives are right to have hoped for something better. Of course, Ms. Miers may surprise us and turn out to be a strict constructionist, as Bush says she will. At this juncture, we need to do two things.

1. Ask whether Ms. Miers is qualified to serve. If the answer is yes, she should be confirmed (even if done without enthusiasm). Many conservatives used this same argument in support of Roberts. They cannot very well change their minds when they are unimpressed with a nominee’s ideology.


2. Work to make sure that the President and the administration clearly understand the consequences of choices such as this one. While this may sound diabolical, it is simply application of the rules of politics. Only by exacting a political price can conservatives hope to engender more attention to their concerns by this and future Republican administrations.

Update: 10/4/05 7:15 AM:
Professor of Law Randy E. Barnett (Boston University) writing in the WSJ OpinionJournal offers a differing point of view on confirming Harriet Miers. He notes Alexander Hamilton’s strong opposition to presidential cronyism in federal appointments discussed in Federalist No. 76. Barnett says, “Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton's description any more closely.” Barnett says regardless of how otherwise qualified Ms. Miers might be, she should be disqualified because her close association with the President smacks of what Hamilton calls “the spirit of favoritism.”

Although Barnett calls for Senatorial Republicans to reject Ms. Miers on the basis of cronyism, I doubt they will even think in that direction. Perma-Hatch was on Bill Bennett’s radio show this morning touting Miers’ nomination, and does so in text on his website. Barnett tries to put this into perspective for Republicans. “Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?” That’s pretty strong medicine.