So Harriet Miers withdraws. Not a surprise.
I never weighed in on the nomination in the first place, and that’s because I had (perhaps characteristically) ambivalent feelings about it.
On one hand, I thought some of those who were hesitant to uncritically join in the complaints about her lack of qualifications had a point, that the grooming of meritocratic credentials has become more and more of a barrier to usefully heterogenous composition of various important institutions, that past justices who have made useful contributions to the Supreme Court have come in without service as federal judges. You could even argue that this is just what the Court needs now, someone with practical real-world experience of the law rather than someone who has primarily been inside the Beltway.
There was also the tantalizing possibility that Miers wouldn’t be a far-right ideologue, but instead a fair-minded, deliberative presence on the Court. And many on the left have been mindful that the next nomination we get may be far less palatable than this one, that in fact Bush may placate the factions of his party who want the second coming of Robert Bork. I couldn’t help but think that this is what some on the far right were disappointed by: not Miers’ qualifications or lack thereof, but that they wanted a nomination that they could rub liberals’ noses in, an unmistakeable trophy of ascendancy. Now maybe they’ll get it.
I can’t really bend my head around easily to that kind of calculation, supporting some specific person instrumentally because other outcomes may be worse. This is the problem with being strongly driven by a specific view of “best practices” in political and deliberative process: you are sometimes bound to support results or decisions that you personally dislike, and sometimes bound to oppose results or decisions that you think might produce some temporary strategic advantage for you or your interests. I’ve been thinking about that a lot this semester, and realizing that in many cases my political affiliations are mobilized largely by the same kinds of things that come into my work on deliberative bodies of various kinds within my own institutional world. If I’m dealing with someone who is judicious and sagacious, willing to see all sides of an issue, able to detach from their immediate advocacy or constituency commitments, able to argue pro and con with equal facility, I’m basically happy even if the outcomes of deliberation aren’t entirely favorable to my own preferences. If I’m dealing with someone who can’t or won’t exhibit that kind of restraint, who can’t step back, who always advances their own interests and prior designs by hook or by crook, I’m unhappy even when the results are favorable to my own judgement on the issue at hand.
When all was said and done, Miers wasn’t even convincing as a hard-nosed, accomplished lawyer who would bring practical experience to the Court: there simply wasn’t any evidence at all of her thought, of her deliberative profile, and too much evidence that she was a lackey and sycophant. Maybe she would have been great: everyone said Conan O’Brian would suck at being a late-night host based on a similar lack of external evidence of his talents, but that was a case where people should have listened to what the insiders knew. But the stakes are a bit higher here, and the bar should be set lower. Let’s just hope that the course correction in the next nomination is towards demonstrable merit rather than towards producing a trophy for the religious right.