A conservatory of Ldotter blogs.

Sunday, October 23, 2005

No retreat, no surrender. . .

. . .has been Bush administration policy since day one. President Bush signaled that policy throughout the 2000 campaign when he insisted that he would not be a president governed by polls. Republicans at the time lauded this stance, and when he finally was able to assume his seat in the Oval Office, those same Republicans pointed to those words as confirmation that "finally, the adults are in charge." Now, with the nomination of Harriet Miers to the Supreme Court, it seems this characteristic has become a source of frustration, and, in some instances, outright rage within certain circles of the Republican establishment.

Before I go any further, I should point out that, as a conservative, I'm less than impressed with Miers as a nominee. Having learned of her apparent stance on minority hiring quotas while serving as president of the Texas Bar Association, I'm not exactly encouraged that she would vote "the right way" on the Supreme Court should affirmative action be brought before the high court again during her tenure. In fact, I'm not especially convinced that she would be a more reliable conservative voice than Sandra Day O'Connor on any number of issues. With that in mind, it would be false to label me a "Miers supporter."

What I support is the President's prerogative to nominate those whom he sees fit to fill vacancies in the Supreme Court and inferior federal courts, and his constitutional right to have those nominees be given an up or down vote in the Senate. Not only is this what the Founding Fathers intended, it also serves as an opportunity to vindicate their vision. In granting such broad leeway to the president, the framers of the Constitution understood that the judgment of a single man is better than that of a deliberative body when it comes to determining the fitness of an individual to a position of such consequence. Where a single person is able to discern specific qualities and quilifications within a nominee, a large body of people will hold a wide range of ideals, varying by the individual, often in direct opposition to one another. To give greater weight to the prerogative of such a body would virtually guarantee perpetual deadlock in appointments to the various courts. We've already seen the consequences of this in President Bush's nominations to the court being blocked for several years, and in some cases, subjected to unprecedented party-line judicial filibusters.

While the conservative intelligentsia, like George Will and others, profess to oppose Miers's nomination based on the notion that she's utterly unqualified to take a seat on the Supreme Court due to a lack of constitutional scholarship, the fact is that the Constitution of the United States, and any change made to it, lies in the hands of the people -- the "supreme authority" according to James Madison. That would seem to indicate that the Founding Fathers created it with the implication that anyone who met the simple requirements for suffrage should be able to fully understand it. The intelligentsia apparently feel that the Constitution's authors were casting pearls before swine in allowing this momentous statement on the rights of man to be soiled by the hands of the commonfolk. Needless to say, I disagree.

Then come the practical politics of it all. Many of those who oppose this nomination do so on several different bases -- often shifting from one to the other. For instance, when you point out that the Constitutions stated qualifications for the Supreme Court are modest by anyone's standard, they shift over to the argument that cronyism is at play. When you point out that it's only cronyism if the person doesn't meet the qualifications set forth in the Constitution, they tend to shift over to the "paper trail" argument. When you point out the disastrous results of relying on a paper trail, most starkly exhibited in the Souter and Kennedy nominations, they tend to shift over to the "lack of experience" argument. When you point out that many justices were catapulted to the High Court without any judicial experience at all, they shift over to the "dividing the base" argument. When you point out that those who nominally "support" the nomination aren't the ones who are threatening to withhold votes and donations, they shift over to the namecalling argument. When you point out that it was Ann Coulter and her fellow polemicists who launched the initial ad hominem salvos, they tend to whirl right back around to the "divided base" argument again. Essentially, it boils down to a mass tantrum among a group of people who think they're ready to go to war with an unknown number of loyal troops, and an established core of mutinous field marshalls --the embittered, ambitious John McCain being its titular head.

And, of course, there is the message that will be sent by withdrawing the nomination. No matter how the White House portrays it, and how many congratulatory "thank you for finally coming to your senses," pieces are written by establishment conservative pundits, the media will lead the story with, "In a sign of growing weakness and dissention within an administration that once seemed invincible, the President withdrew the nomination of Harriet Miers to the Supreme Court today. Democrats aren't even bothering to conceal their glee, privately noting that the Republicans essentially did their dirty work for them."

I'm in no way convinced that Harriet Miers is the best person for the position. I'm even more skeptical after having read the last few posts over on The Corner by Jonah Goldberg, who has been fair-minded and restrained, throughout. But, skeptical as I may be, I'm just as convinced that the Coulters, Wills, Limbaughs, and Frums would, if given their druthers, further establish a particularly pernicious criterion for judicial nominations: that the process of vetting nominees include the yammering class.

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