Miered in Standards

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.

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One Response to Miered in Standards

  1. emschwar says:

    What bothered me about Miers was that he had just finished with John Roberts, a man who was both unquestionably qualified as well as principled about his arguments and decisions. Roberts was almost the anti-Miers: he too had been a White House lawyer,but where Miers had experience running the Texas Lottery Commision, Roberts had clerked for Justice Rehnquist. Most of the evidence behind Roberts’ qualifications was in the form of public arguments he’d made before the Supreme Court, or in the form of decisions he’d made as an appellate judge, whereas most of the documentation behind Miers’ qualification was either extremely equivocal, or else protected by executive privilege.

    One could oppose Roberts’ nomination ultimately on the basis of disagreeing with him; it would be a very hard sell to claim he was an Adminstration crony. But for Miers, there simply was no other justification for her nomination. I could imagine nearly any Republican president nomating Roberts; nobody but Bush could possibly have nominated Miers.

    I think your hope is reasonably justified; I’ve been reading an unusual number of conservative blogs lately, trying to get a bead on what the objections have been to Miers, and most of them have been dismissive of the administration’s attempts to paint her as an evangelical (which itself seems to be a codeword for “She’ll overturn Roe”); instead, the objections are either, “She’s not qualified” (which perception was only increased by the recent release of her nigh-incoherent speeches) or else, “Even if she makes the right decisions, she’ll do so for the wrong reasons.” For an example of the latter, see George Will:

    “Thoughtful conservatives’ highest aim is not to achieve this or that particular outcome concerning this or that controversy. Rather, their aim for the Supreme Court is to replace semi-legislative reasoning with genuine constitutional reasoning about the Constitution’s meaning as derived from close consideration of its text and structure. Such conservatives understand that how you get to a result is as important as the result. Indeed, in an important sense, the path that the Supreme Court takes to the result often is the result.”

    The President, true, might be moved to nominate an extremist out of pique, but given that much of the complaining about Miers came from the center (the religious right was more or less behind her because they were sure she’d overturn Roe V. Wade), I hope he’s savvy enough to realize that would be even more self-defeating than Miers’ nomination was. Darn it, the guy did a reasonably good job with Roberts, why can’t he do it again?

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