THE DISAPPOINTMENT many conservatives feel over the nomination of Harriet Miers to the Supreme Court will not vanish unless and until Miers begins writing solid conservative Supreme Court opinions. In the absence of such opinions, there is little reason to believe that the Miers nomination fulfills President Bush's stated desire to nominate Justices in the mold of Scalia and Thomas. In fact, we cannot even be highly confident that Bush has nominated a reliably conservative vote, as opposed a swing vote in the O'Connor or Kennedy style.
Some dispute the latter proposition. They argue that Bush is in the best position to know what kind of Justice Miers will be, so that if he assures us that Miers is a judicial conservative, we have no reason to doubt his word.
This argument fails to instill great confidence. A president usually deals with his White House Counsel at a very high level. It's not likely that Bush (a non-lawyer) and Miers have had in-depth discussions about constitutional law. Thus, while Bush might be in a position to know very generally that Miers is a conservative as opposed to a liberal or a centrist, he's not likely to know whether she has a solid conservative judicial philosophy of constitutional adjudication, much less what she thinks about specific constitutional issues. It's also disconcerting that Bush has defended Alberto Gonzales, Miers' predecessor as White House counsel, from conservative critics, apparently including him among those who "will strictly interpret the Constitution and not use the bench to legislate from"--essentially the same endorsement he now has given Miers. Given Gonzales's record, few conservatives regard him as a reliable vote over the long haul.
In any case, conservatives justifiably feel disappointed that they should have to rely solely on the president's legal and psychological acumen as they try to become comfortable with his nominee. There were at least two dozen candidates, including women, African-Americans, and Hispanics, whose conservative bona fides would have been apparent to the naked eye. Bush's rejection of these candidates in favor of Miers feels like cronyism or political weakness.
AS THE CONFIRMATION PROCESS UNFOLDS, however, the issue for conservatives no longer will be whether we are disappointed, but rather whether Miers should be confirmed. The question is more than academic--for it is possible that without the support of conservative Senators the nomination will fail. To be sure, some Democrats, including Minority Leader Reid, have made favorable utterances about Miers. However, at her confirmation hearings, Miers almost certainly will not give the sort of assurances on Roe v. Wade that Democrats will demand. And unlike with Roberts, Democrats will not feel constrained by public opinion to vote for Miers--she lacks both Roberts' record and his charisma. The only pressure Democrats will feel to vote for Miers is the sense that Bush might nominate someone worse from their perspective. But the opportunity to deal Bush a huge defeat, coupled with pressure from the abortion lobby, may prove irresistible. Thus, a coalition of Democrats and conservative Republicans could possibly sink this nomination in what could be the oddest confirmation battle in memory.
On the currently available information, conservative Republican Senators shouldn't go there. Two questions control the confirmation issue: Is Miers qualified and should she be rejected on ideological grounds? At this juncture, neither question strikes me as very close. Miers has achieved just about everything a lawyer can accomplish--head of a substantial law firm, head of the state bar association, and top legal adviser to the president. She also has a background in local politics. Only by insisting that a Supreme Court nominee possess either judicial experience or a portfolio of scholarly writings can one pronounce Miers unqualified. But this has never been the standard, and it's not clear why (ideological considerations aside) Republicans should invent a new standard with which to deal a blow to a Republican president.
On the merits, moreover, judicial experience or legal scholarship should not be a requirement for the Supreme Court Justice position. This background may well be highly desirable, and not just for purposes of intelligence gathering about a nominee. Yet some knowledgeable commentators think it's highly desirable for some justices to possess a more practical, less rarified background. Reasonable minds can differ, which suggests that the president should have the option of appointing outstanding lawyers with no judicial or scholarly experience.
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.