Give Me Something To Work With Here

I’m trying as hard as I can to maintain my contrarian stance about Harriet Miers. (And, ultimately, I still maintain it; I still haven’t heard a persuasive argument, in specific and tangible terms, explaining why whatever damage it is that Miers would do could possibly outweigh the bad effects of having a Priscilla Owen on the Supreme Court. Given that the Court’s only sustained period of great progressive jurisprudence hit its stride with people like Sherman Minton and Charles Whitaker and Tom Clark on the Court, it certainly can’t be the case that one mediocre justice threatens the Court’s institutional legitimacy.) But still, I admit that things like her inability to understand basic aspects of equal protection law on her questionnaire does make it difficult to sustain even a passive-aggressive Machiavellian defense. And as Drum said, this is particularly embarrassing for the Bush Administration. As Pamela Karlan says: “Are they trying to set her up? Any halfway competent junior lawyer could have checked the questionnaire and said it cannot go out like that. I find it shocking.” It’s not like it’s the LSAT; it’s pretty embarrassing the Bush can’t get it together enough to find a lawyer who could competently answer the questions for her. See also Dahlia Lithwick’s alternative questionnaire (“4. Is it correct for a comma to appear before a coordinating conjunction linking the parts of a compound predicate? 5. You have named Chief Justice Warren Burger as one of your favorite Supreme Court justices. Is it his devastating intellect, his soaring writing style, or his evenhanded administration of the court that you most admire? Where do Charles Whittaker and James McReynolds rank among your Top 10 Justices? 9. Please name any state Bar Associations from which you have yet to be suspended.”)

In other Miers news, I noted last week that Charles Krauthammer accused anyone who disagrees with him of not doing judicial interpretation at all, while his examples were entirely outcome-oriented. Well, as Dwight Meredith points out, he’s certainly out-hacked himself this week. A few months ago, Krauthammer–not alone among conservative commentators–invented a constitutional obligation for the Senate to give a nominee an “up-or-down” vote. Now that Bush has appointed an ideologically ambiguous crony, however, the Senate’s role has once again been transformed back into something resembling the real one; how surprising. Dwight sums up Krauthammer’s “principles” effectively:

So, let’s see if we can discern the principle Krauthammer applies to judicial nominations. First, he decries the use of a parliamentary maneuver, the filibuster, when it is used to block nominations he favors. He supports the use of a parliamentary maneuver, the nuclear option, when it would result in confirmations of nominees he favors.

He thinks that it is important and, indeed constitutionally required, for a judicial nomination to receive an up or down vote when he favors the nominee. When he opposes a nomination, he calls for withdrawal of the nomination without the need for an up and down vote.

When Democrats use a dispute over the production of documents as an excuse to block a nomination Krauthammer favors, he is prepared to go nuclear. Nonetheless, since he opposes the Miers nomination, he advocates using the excuse of the failure to produce documents as a way to prevent an up or down vote on her confirmation.

Krauthammer’s principle is clear. He is for or against whatever it takes to confirm the nominees he favors and to prevent confirmation of those he opposes. It is the principle of convenience.

100% right.