Tuesday, October 04, 2005

The Conservative Firestorm Over Harriet Miers

Given the nature of the real job, I am reticent to comment upon Supreme Court nominees. While I doubt that anything I ever say here will have any kind of impact in any case that I might get to the Court (and I've filed more than a few cert. petitions; even had one granted), the possibility exists, and where the profession is concerned, discretion is truly the better part of valor.

That does not preclude me from commenting upon Conservative criticism of Supreme Court nominee Harriet Miers. As noted by Norm at One Man's Trash, "Over at Sic Semper, both Old Zach and Lighthorse Harry are unleashing their fury at the President and the seeming inability of conservatives to stand up for principle these days." Neither does Chad or a number of commenters hold their fire at Commonwealth Conservative.

Let me first say that I have no inside knowledge of Miers. Never met her. Never heard her speak or saw her at a Federalist Society Convention (something which is or maybe should be de rigeuer for any Bush nominee). Never even saw her name, 'cept in news reports. Even Chief Justice John Roberts once appeared on the right side of briefing in a case that I litigated (that's a public record). So I really have no way of assessing her record. And there is some legitimate concern about whether the President inherited the Bush gene that causes squishing.

With that having been said, I wonder whether Conservative criticism --- not mere concern --- is justified. Perhaps Fred Barnes said it best last night, when he noted that, to believe the concerns on the right have merit, you have to believe that the President either picked a moderate, or truly doesn't know whether she is dependably Conservative, for the Supreme Court: (1) after filling the appellate court benches with rock-ribbed Conservatives; (2) after having fought for them and in some cases, renominated them; (3) after publicly noting that his model Supreme Court Justices are Antonin Scalia and Clarence Thomas; and (4) after having worked with this woman on a daily basis for more than a decade.

If a Justice Miers disappoints, then Conservative criticism should be withering, for all the good it will do when she has life tenure. But we simply don't know enough to know whether that will be the case, and --- on this issue at least --- this President has earned the trust of Conservatives.

Sorry, but I just don't think that this concern is well grounded. The President has heretofore demonstrated absolute commitment to reigning in the federal judiciary with Conservative appointees. While watchfulness and skepticism is always the rule where politicians are concerned, and Justice David Souter is precedent for suspicion of any nominee without a paper trail, this President's record on this issue demonstrates that he is worthy of some faith that his nominee will fulfill Conservative expectations.

Perhaps something will come out to cause me to change my mind on this. But thus far, I haven't seen it.

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