Avoiding The Good Fight

I expressed disappointment over President Bush's nomination of Harriet Miers yesterday. Cassandra asked for patience and asked that we all give the nominee a chance. I expressed the desire to reach a hasty conclusion without the opportunity for reasoned reflection. Cassandra's opinions are always highly regarded at the Cheese, but I must disagree, even after a night to sleep on it. My disagreement has nothing to do with Miers as a potential justice. It has to do with the nomination of a "stealth" (and we mean stealth) candidate.

The President's nomination of Judge Roberts placed a limited judicial record in front of Congress. While his political career and his few judicial opinions were clearly conservative, they were hardly groundbreaking in their Constitutional controversy. In the end, the debate had little with which to work and the nominee easily passed. As he should have. He was not only qualified but he was clearly the smartest man in the room whenever he was in Congress or the White House.

It appears though that Roberts' hearings made the President nervous. Miers is hardly the nomination of a President desiring to clearly fulfill his promises and lead the country in a debate over judicial philosophy.

From what I have seen, Miers has mostly political and administrative experience, a corporate law background, and little litigation experience. What litigation experience she does have, and we can quibble over the term "little," does not appear to have involved Constitutionally significant issues. Is she a lawyer? Yes. Is she "qualified"? Probably, to the extent that any lawyer is. Does her resume inspire even the slightest bit of confidence? No. Even had Roberts never served on a Court, at least he advised a President in Constitutional issues, represented the the United States in Constitutional litigation, and was an accomplished, maybe the most accomplished, advocate before the Supreme Court. I cannot tell if Miers has ever seen the inside of the Supreme Court.

The President has made a nomination that appears designed to avoid what this country really needs: an open and honest debate over the role of the Courts. Roberts' nomination only touched on this subject. The President had a chance to focus the nation's attention on his promise to appoint judges in the mold of Scalia and Thomas, and why they are the model of a proper Federal judiciary.

The nomination of a well known, on the record, judicial conservative would have engaged a healthy debate that this country needs. Any number of qualified persons could have filled this role.

Moreover, there is no doubt that the President would have won. On what issues would he have lost? Do the people want a more intrusive judiciary? No. Do the people want a judiciary that overturns parental notification laws for abortion or partial birth abortion laws? No, they don't, not even in liberal California where such laws pass the legislature. Can the people understand that the political process is important only when the Judges let it work in those areas reserved to it? They can if one leads them.

We will also no doubt be told that President Bush knows Ms. Miers and that should matter. I suppose it might. But Bush promised to give us more people like Scalia and Thomas on the Court. We could all see, even if we aren't certain, how Roberts could fulfill that promise. Nothing we will see will convince us that Miers does.

We are asked to take it on faith that the President knows Miers well enough to know she is a conservative. Well, pardon me, but this is not a President that inspires such faith. The only area he seems steadfast is in the WOT. In all other matters, he is nothing special. This "conservative" President has given this country a huge entitlement program with his Medicare drug bill, huge domestic spending deficits even ignoring the WOT (and despite revenue increases brought on by tax cuts), steel tariffs (now repealed), a "highway" pork bill that would make a prostitute blush and ZERO Presidential vetoes.

While some of Bush's appointments are to be celebrated, his appointments to several agencies have appeared poorly considered and unqualified, with the latest fallout being FEMA's chief. This is not an appointment to run HUD. I should not have to take President Bush's Supreme Court nominee on faith. If President Bush's "conservative record" were the evidence upon which I must base my faith in God, then I would be agnostic.

There are 55 Republicans in the Senate. When is this country going to be more ready to have this debate? Probably never, at least in the short run. The President had the opportunity to make a statement. A well qualified, judicial conservative deserves a fair hearing and vote. The President shied away from that statement. Instead of taking on the true role of judicial philosophy, he would rather argue over qualifications and cronyism. If that makes you more comfortable, Mr. President.

The Republicans also had the opportunity to state, once and for all, that Borking doesn't work any longer. If a hard core, far from center leftist (see, e.g., Ginsburg) can pass with hardly a protest vote, then so can her polar opposite. The Republicans, and President Bush in particular, failed to lead us on this debate and proved to be cowards.

What is the result of this cowardice? The first lesson to young lawyers and judges with higher court hopes or aspirations is that they must hide their feelings. Never speak publicly and take a position on the issues of the day. Never write an op-ed column. Do not blog, at least while offering opinions. Don't join the Federalist Society. Keep one's firmly held judicial philosophy close to the vest, or you may have to actually take on Congress when the confirmation process arrives, if the President has the courage to nominate you.

Is this the message we want to send? Is muting our brightest legal minds and leaving the political commentary to hacks like me healthy for a democracy? I know not.

President Bush evidently disagrees.

UPDATE: Related points here (on trusting Bush's character references) and here (on rebutting arguments similar to those I addressed).

I'M FISKED: This post is fisked by Cassandra at Villainous Company. You will excuse me now. I have to go lick my wounds.

UPDATE: spd rdr at Heigh-Ho sums up some feelings I have. And he is nicer about it.