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Holding Our Fire--And Our Breath

Why Harriet Miers merits support from conservatives.

12:00 AM, Oct 10, 2005 • By PAUL MIRENGOFF
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The argument that conservatives should reject Miers because she doesn't seem to be the right kind of conservative, and may not be a conservative at all, seems problematic as well. For the past four years, conservatives have argued that ideology does not constitute a proper basis for voting against a president's qualified nominees. We have deplored Democrats who voted against qualified mainstream conservatives. We would have become apoplectic had Sen. Arlen Specter not supported a conservative nominated by his party's president. On what principled basis, then, can conservatives now vote down a nominee who is either a moderate or, more likely, some sort of a conservative? Miers plainly is not "outside the mainstream."

However, the shrewdest conservative legal thinkers have eschewed the "mainstream" test. They tend to ask not whether a nominee is outside the political mainstream but whether she is faithful to the Constitution as written. Since judging should be about fealty to the law, not substantive political outcomes, this formulation is sound in theory. And it has the added virtue of enabling conservatives to maintain a principled opposition to mainstream liberal, moderate, and maybe even insufficiently conservative nominees.

But avoiding a political phraseology is not the same thing as avoiding politics. And the politics of the confirmation process tell us that a standard under which conservative senators vote against nominees in, say, the Sandra Day O'Connor mold, is a standard that might well lead non-conservative senators (that is to say a majority) to vote against the next Antonin Scalia.

In the case of Harriet Miers, though, we are not even talking about someone in the O'Connor mold--we are talking about someone who might be another O'Connor but is just as likely to vote with Scalia in the vast majority of big cases. In this situation, it seems imprudent to blow up the confirmation process---and possibly the Bush presidency and the Republican party--to block her nomination. Thus, conservative senators should be prepared, barring new and damning information, to vote in favor of Miers. The rest of us should be prepared to hold our breath until we start seeing what she writes.

Paul Mirengoff is a contributing writer to The Daily Standard and a contributor to the blog Power Line.