Friday, October 07, 2005

My thoughts on Miers' nomination

After two, count 'em, two very detailed and long posts on Harriet Miers were eaten by cyberspace (I've calmed down, but not by much), I'll give you all the succinct reasons - the objectively correct reasons - why Harriet Miers' nomination was a mistake and a dissapointment.

First and foremost, a nominee cannot be evaluated without knowing the standards to which the nominee should be judged. I am not satisfied that a nominee is merely "qualified." I would be if the left was, but since they are not, and they cheated first, we have to play by their rules. So, in addition to being "qualified," and in addition to having solid conservative bonafides and expressing an intent to be a "strict constructionist," there are two qualities (not qualifications) a nominee must possess to be objectively satisfactory:

(1) The nominee must not "grow" on the bench.

You all know what this means (*cough* Kennedy *cough*). This quality is unknowable, by definition, at the time of the nomination, even to the nominee herself. Hence, we have to look to objective evidence of the types of qualities past nominees have had that didn't "grow." One of those objectively verifiable qualities is a long history of public engagement on constitutional issues where the nominee has put his or her intellectual gonads on the chopping block for liberals to tear apart. This does not necessarily mean past judicial experience, though that does qualify (really, only appellate judicial experience qualifies, unless it is a Federal district judge with a lots of published decisions). Law review articles, public speaking engagements, active participation and leadership in conservative legal organizations, like the Federalist Society or the Cato Institute, etc. also qualify. Only when that nominee has stuck to his or her guns in the marketplace of ideas do I have comfort that the nominee will not "grow."

Harriet Miers does not have this quality. My objection to her nomination is nicely summed up in one sentence by Daniel Henninger on Opinion Journal today: "Harriet Miers may share these reformist views, but her contribution to them is zero." When others were available who would obviously not "grow" on the bench (*cough* Janice Rogers Brown *cough*), there was no reason to take a chance with Miers. Next,

(2) The nominee must be exceedingly successful articulating and promiting conservative constitutional thought in the marketplace of ideas.

It is all well and good to have another vote for Scalia and Thomas on the Court. But Scalia is 70 - he won't be around forever. Far too many times, Scalia and/or Thomas have written brilliant Originalist concurring or dissenting opinions that only each other - or no one - joined. Scalia should have joined Thomas' concurrence in U.S. v. Lopez. Rehnquist should have joined Thomas' dissent in Grutter. When "conservative" justices don't join the excellent and correct reasoning of Scalia and Thomas' opinions, this marginalizes their influence. Lower courts follow and apply the reasoning of majority opinions, not concurrences. Dissents are more powerful and more likely to eventually be adopted when more justices join them. Every time a solid conservative like Rehnquist (and as I suspect will be true of Roberts) does not join Scalia or Thomas, the more the left can argue that Scalia and Thomas are "out of the mainstream."

Hence, it is not enough for a nominee to be a "strict constructionist" or a "conservative" even like Rehnquist. To be an acceptable nominee, that person must have the rhetorical and intellectual firepower of Scalia and Thomas, and must be equally dedicated to righting the ship for all lower courts to follow. Again, Miers might have this quality, but she has not shown it. It is unacceptable to nominate Miers when so many other potential nominees (*cough* Janice Rogers Brown *cough*) have shown the intellectual and rhetorical firepower on par with Thomas and Scalia.



Blogger Director Mitch said...

Reportly, Brown doesn't want to be a SCOTUS and turned down the Robert's nomination.

Remember that the SCOTUS is a political nomination and a politcal process, and not everyone wants to go through that. Especially people who just want to live in ivory towers.

5:20 PM  
Blogger Ben said...

Uh, especially people who want to live in Ivory towers? How about the opposite. I highly doubt Mrs. Brown would turn down a Supreme Court nomination. I've met her several times. I don't know where you're getting this from.

10:55 AM  
Blogger Justin Levine said...

"To be an acceptable nominee, that person must have the rhetorical and intellectual firepower of Scalia and Thomas, and must be equally dedicated to righting the ship for all lower courts to follow."

In order to "right the ship" the justice in question must have an active contempt for stare decisis, no? Otherwise, they will be forced to uphold the already institutionalized liberalism in court jurisprudence from the past 40-years. I doubt that even Roberts is up for that task, let alone Miers.

But it seems that the two of us have already had this discussion Ben....

5:00 PM  

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