Harriet Miers

If I were a Senator, I really don't know how I would vote on confirming Harriet Miers to the Supreme Court. Many people (such as KipEsquire) reject her nomination as patently unqualified for the job. No one disputes that she has no judicial experience, but then neither did Rehnquist, Warren, Frankfurter, or even John Marshall, among other notable Supreme Court justices. Worse, it seems that she has no particular experience, expertise, or even demonstrable interest in constitutional law. An interest would be demonstrated by forming (G-d forbid) an opinion, of which she apparently has none. The kabuki theatre of the confirmation hearings, in which Senators ask questions and the nominee evades answering, will provide no enlightenment, with the "I can't discuss matters that would violate my attorney-client privilege with the President" evasion available to this particular nominee to supplement the all-purpose "I'm not at liberty to pre-judge any matter than might come before the court" evasion. (Can you imagine someone at a job interview for a software engineering position, when asked how they would approach a hypothetical design problem, saying "It would be unethical for me to answer that, as I wouldn't want to prejudice any future tasks I might work on." Thank you for your time. . . NEXT!)

Strangely, the only attributes being put forward by her Advocate-in-Chief are these: (1) he (alone, apparently) knows her heart, (2) she's a good person, and (3) she's an evangelical Christian. While these may be commendable character attributes, they are Supremely irrelevant. The obvious word for this situation is "cronyism". (Attribute #1, after all, is simply a nice way of saying "she's my crony.") As KipEsquire and Andrew Sullivan among others have pointed out, the Founding Fathers had a word or two to say about this in Federalist No. 76, in which Hamilton wrote that the primary purpose of requiring Senate confirmation was to act as a "check upon a spirit of favoritism in the President" to prevent him from nominating "candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in one way other personally allied to him…" One can only be amazed at the prescience of Hamilton, who looked into the future and clearly saw Harriet Miers. Thus, considering only principle, a Senator ought to reject such a nominee.

But should a Senator consider only principle, when there are politics at play? It's credible to assert, as Andrew Sullivan has, that this nominee is probably the best we can hope to expect from this President, and that if she is not confirmed, what follows could be much worse. The blank (or rather, hidden) philosophy and likely mediocrity of a Justice Miers may well be preferable to a technically superior fire-breathing ideologue like so many right-wingers were hoping for. Tactically, while a Democratic filibuster of this candidate might conceivably carry (given the discord on the other side of the aisle), that would make it politically near-impossible to filibuster the next candidate, and that one could be much more deserving of a filibuster. Strategically, this nomination has opened up a huge wedge in the President's base, and the opposition party would be foolish not to drive the wedge by confirming her. (Senator Reid clearly gets this.)

What a conundrum for the Senators, and what a sorry state of affairs.