Daly Thoughts, speaking as an engineer, does a nice job giving voice to the disgruntled conservatives re Miers. (Oct 4 post, "Anger, Explained.")
This is one reason that there is the system of checks and balances in place, with Senate confirmation. Confirmation makes it so there is not the potential for a single point of failure. The President’s judgement is one potential failure point. Perhaps a President did give way to the temptation for cronyism. Perhaps a President was acting in good faith but was in error in having confidence in a nominee. If the Senate is doing its job of advise and consent properly, the confirmation process should protect against those situations; it would take both a failure (of intent or of judgement) by the President and a failure (of intent or judgement) of the Senate for an unqualified, incapable Justice to be seated. However, if the Senate is deferring to the President for that judgement, then we are back to a single point of failure.
The Supreme Court is too important for a single point of failure. I have no problem with the President’s familiarity and confidence in Ms. Miers playing into his decision to nominate her, but the Senate should act with no deference towards that familiarity and confidence. If Senators have that confidence on their own, independently, then that is also fine. There still would not be a single failure point. So if I have “no problem with the President’s familiarity and confidence in Ms. Miers playing into his decision to nominate her,” why am I troubled by her nomination?
Because if the only reason for the nomination is that confidence, then we are already downstream of one of the two failure points. If the President is not acting in good faith (which I do not believe– I think he does believe Ms. Miers will be a fine Justice) or if the President has erred in his own evaluation (which I do not know) then we are one step away– a single failure point– from a big mistake. It goes against my engineering background to be comfortable when a system designed with defense in depth is testing the bounds of a single failure point before a complete system breakdown. And I am not convinced that the Senate will act as a second check.
Would Ms. Miers be a serious contender for the position in absence of her personal experience with the President? I am skeptical, yet it is very possible that she will be supported by many, if not most, Senators out of deference to him. I take the Constitution too seriously to be happy with that.
And it is not just Republicans in the Senate who cause me to be skeptical over the Senate’s potential for acting as a good check here. It has been reported that Ms. Miers was among the names given to the President by Sen. Reid as acceptable by the Democrats. Perhaps, like the President, Sen. Reid and others have, through their own experiences with Ms. Miers, developed confidence in her that transcends her resume. If so, then that is fine to me. However, on this I am skeptical. I think it is significantly more likely that her name was presented due to political calculation. Again, I take the Constitution too seriously to be happy with that.
The second way this nomination irks me is relevant to me as a conservative. I have seen it argued that the right was itching for a fight over this nomination, and are disappointed that we did not get a nominee who would trigger such a fight. I come close to falling into this mold, although I would put it differently. I was not itching for a fight. I was, however, itching for a debate.
Are Justices such as Scalia and Thomas now considered unconfirmable? Are such Justices now considered out of the mainstream? To many on the left, the answer is an unequivocable “yes.” However, the President campaigned on nominating Justices in their mold, so why on earth should the left’s position be accepted in this regard? It angers me that the President is avoiding this debate. I can accept my side losing a debate. I have a much harder time with my side losing by default for fear of engaging in a debate. Are we at the point where the only conservative Justice that can be confirmed is a stealth conservative? Prove it to me. If we have such a debate, and the public rejects our views and abandons supporting us on the merits, then we do not deserve conservatives on the bench.
Something is very wrong with our approach if we feel we have to sneak someone through. And if we are acting like we are trying to sneak someone through, we should not be surprised if the public picks up on this and regards us with suspicion. We are who we are, we believe what we believe. Choose. That is the way it should be.
The third way in which the nomination grates on me is relevant to me as an amateur Republican strategist. A Supreme Court nomination is a political opportunity. It would be wrong to make a nomination purely on political calculations just as it would be wrong to make a nomination purely on personal confidences. However, there is nothing wrong with using political concerns as a differentiator between qualified potential nominees. And in this case, the political concerns work against the nominee. The nomination has divided the President’s supporters, rather than unifying and exciting them. The nomination has provided the Democrats with reasons for opposing, should they choose to do so, that will not come with a political cost. Should Senator Nelson (pick whichever of the two you like) decide to oppose Ms. Miers, he will be able to do so in a manner that is unlikely to hurt his re-election campaign. The Democrats have been working the cronyism meme against the President already, and this nomination provides, fairly or not, more ammunition for them. It is as if the President has gone out of his way to make things more difficult for his party’s candidates in the coming elections. Is it any suprise that Republicans, like me, are ticked about this?
Ten years from now, it is very possible that Justice Miers, should she attain confirmation, will have proven herself to be an exceptional Supreme Court judge, especially in the eyes of a conservative Republican such as me. Even if this does end up being the case, it will not change my views of this nomination. It sets a bad
precedent. It avoids a debate that should take place. And it hurt the party of my preference politically. No matter how it ends up, it was a bad nomination.
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