Because most philosophies that frown on reproduction don't survive.

Monday, October 03, 2005

High Court Disappointment

The conservative blogsphere does not seem impressed with the nomination of Harriet Miers to replace O'Connor on the Supreme Court.

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. This is a chance that may never occur again: a decisive vacancy on the court, a conservative president, a 55-seat Republican majority, a large bench of brilliant and superbly credentialed conservative jurists ... and what has been done with the opportunity?...

There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence.

The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.

Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.

Levin: truth, we already know what's going on here, and that the president, despite a magnificent farm team from which to choose a solid nominee, chose otherwise. Miers was chosen for two reasons and two reasons alone: 1. she's a she; 2. she's a long-time Bush friend. Otherwise, there's nothing to distinguish her from thousands of other lawyers.

After sampling through the unease, discomfort and downright anger among a lot of conservatives about Miers' pick, it strikes me that the problem with her pick isn't whether she's "conservative enough" (no one will really know) or even that she looks like a crony pick. Or even that her lack of a written record concerning the big constitutional issues of the day precludes the big public debate we need (though I suspect we would not ever get, given much of the media's unwillingness to get beyond repackaging press releases and quotes from "Law Professor X"). The real problem with Miers' nomination is that there is *no* evidence that she has the intellectual gravitas to slowly but surely move the court away its current path. It will take years and years of hard work to overcome the decades of precedent and self-interest that have left us at a place where children can be killed halfway out the womb, nude dancing is better protected than political speech, and no one has any reasonable idea what the religious liberty clauses will do in any particular case. Miers might provide a crucial swing vote on particular cases and temper the court's worst impulses, but there doesn't seem to be any evidence (that I've seen, at least) that she can engage jurisprudential questions at their most profound and unless the principles underlying the Court's mistakes get fixed, any contemporary victories will be but brief.

GOP Senators should push her hard to see if she has the chops to do this. If not, they should turn her down and send President Bush a note that they didn't work hard and win all those elections for nothing.

I have to say, at this point I'm really not impressed.

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