There are two themes in the mainstream media on Harriet Miers’s nomination to the Supreme Court. The first is that Harriet Miers is not sufficiently conservative enough to satisfy the Republican base. The second is that Harriet Miers is a crony, and her appointment is something akin to Michael Brown’s disastrous, as it turned out, appointment to be head of FEMA.
Let us lift, as much as we can, the shroud of illusion and dismiss the conservative opposition to Miers. As much as it makes liberals and leftists squirm with pleasure to see the President discomfited by the raving howls on the right, Meirs’s appointment to the Supreme Court is not a victory for our side. Furthermore, like most right wing storms, for all its thunder there will barely be a trickle of rain. In the end, for all their resentment at not getting exactly what they want, conservatives (and especially conservative Senators) will chalk up Meirs’s nomination as a victory for their side of the aisle.
Rather, given the scorched-earth nature of politics (in the media-verse) today, it would have been much more significant had the President appointed a so-called strict-constructionalist, or an originalist, or a card carrying member of the secret inner order of the Federalist Society. The Democratic opposition in the Senate was severely compromised by the filibuster deal. (And of course, these issues do not exist in a vacuum. The entire Democratic party is partially paralyzed by its inability not to support the President’s damn War in Iraq. But let’s, in the interest of not confounding one stench with another, skip the Iraq War entirely.) The lack of any strong opposition to Roberts as a matter of principle—on the principle that the Senate should have the right to look into an appointee’s past and to know exactly whom they are voting for—further hobbled the Democratic party’s ability to maneuver on judges in the US Senate. The time was right, Conservatives rightly believed, to appoint another firebrand along the lines of Judge Scalia... or better yet, another vacuum-head along the lines of Judge Thomas.
Had the President appointed a right-wing wet dream, it would have provided a profound opportunity to break or recreate the Democratic opposition in the Senate. And, significantly, such a gambit would have likely succeeded.
However, our moral dwarf President is not someone who keeps his eye, however much he says he does, on the big picture. Facing ever-dwindling popularity poll results and cumulative catastrophes to which there is little he can do after-the-fact, but much that he should have done before..., President Bush’s view of the world is shrinking. In addition to admonishing the White House staff to turn off the lights in order to conserve energy he is increasingly consumed by little tasks and unable to deal with the greater burdens of power. He is also turning more and more to a shrinking talent pool. He appointed his long-time adviser and power broker, Karl Rove, to oversee the Katrina corporate giveaways, err... construction efforts. And now he has turned to his White House Counsel and long time Texas crony Harriet Miers to be his Supreme Court nominee.
There is a line of worry among left-of-center bloggers: that Harriet Miers is a kind of insurance policy. That should the President or the President’s pro-torture policies ever receive their due day in court, she will act as a partial umpire and cover the President’s ass. There may be some truth to this paranoia-inspired Machiavellian interpretation of Miers’s appointment. But, really, does the truth really matter (to this President)?
No, there is little to do and little that can be done. That Miers will be appointed is something of a sure bet (her background and age somewhat preclude shady business dealings or a torrid sex life). Furthermore, given the way they rolled over on Roberts, it is unlikely that there will be any Democratic opposition to her nomination in the Senate.
There are however, several questions that need to be raised, and loudly, in the public sphere. She should be asked, and made to answer, what her position on revisiting prior Supreme Court decisions is? How will she judge such cases? Does she believe that the Constitution implies, or has inherent, a right to privacy? This is not to ask her directly about Roe v. Wade, although perhaps that should be done too, but to put her on the record about her approach to constitutional law.
The other issue that should be raised is her relationship to the President. Clearly her appointment can be fairly judged as cronyism. She might be, one hopes, a competent crony, but her closeness to the President surely influenced his overly high regard for her. She should be asked to lay out how the search for Judge Roberts (which she conducted) was conducted. She should be asked what qualifications she would look for in a Supreme Court nominee. She should have to defend herself.
Leftist Boddhisatva’s prediction: Miers will be the next Supreme Court Justice and there’s not much we can do about it. In the end, she will look far more moderate than Judge Roberts, and we might very well be looking at her as a just carrier of the legacy of Sandra Day O’Connor (who, despite the applause, is, in my opinion, a partisan wench).
Disagreeing: Steve Soto
Agreeing: The Washington Note