I’ve been reflecting on my initial take on the strategy surrounding Miers. And the more I think about it the more I have to say that I think that (gulp) Kos is right and Belle Waring is wrong. The Democrats should tacitly allow Miers to be confirmed. Belle does make the strongest point, which is the claim that Dobson’s support means that she’s probably a vote against Roe. But I don’t think so. First, as Atrios notes there were some evangelists who thought O’Connor was opposed to abortion rights; in this case, nobody knows because there just isn’t any solid evidence, and Bush’s predictions don’t really mean anything (particularly given that Bush is almost certainly more concerned with upholding presidential power than overturning Roe.) In addition, it must be considered as well that Dobson has an extensive history of being the GOP’s useful idiot, especially when it comes to understanding the relative power of economic and cultural reactionaries within the Republican Party. (And, really, how seriously do you take James Dobson’s good judgment in any case?) Dobson’s secret messages, then, are one piece of evidence, but they hardly remove the very real ambiguity about how Miers will rule in particular cases, an ambiguity that is inevitable given her record.
Anyway, and I think this is the important point, any analysis of this question has to start with the obvious truth that a clear supporter of abortion rights (or opponent of the “New Federalism” or whatever) is not on the table. I feel like I’ve been having the same argument since several smart people I know decided to vote for Nader in 2000, but the belief that the Democrats can somehow stop Bush from appointing a bad judge if they just try really hard is precisely equivalent to Bush’s assertion that we can have a stable pluralistic liberal democracy in Iraq if we just try really hard. The Democrats may be able to stop an individual bad nominee–maybe two–but there are no circumstances under which you’re getting a nominee who clearly supports progressive jurisprudence, even if it’s confined to a narrow set of issues like abortion rights. “Bush’s nominee” vs. “somebody you would actually want to see on the court” is a false choice; any chance of the latter ended when Bush was re-elected. The decision to be made about Miers has to be made by weighing the probabilities involved among bad choices. So once we accept the real dilemma, what do you think is better for progressives:
1)Is it better to have an ambiguous candidate who may be thought a wingnut, or get an Owen and remove all doubt?
2)Is it better to have somebody at/over or under 60?
3)Is it better, given the inevitability of a conservative nominee, to have a lightweight who will pass without much of a mark or somebody who will write lots of persuasive opinions and leave her stamp on constitutional doctrine for generations?
In all 3 cases, I think, you have to go with what’s behind door #1, and that’s Miers. Spending capital to reject Miers can only lead to someone who is some combination of more unambiguously conservative, younger, and more likely to leave a mark on the court’s doctrine. I can’t see any way it’s in the interests of progressives to pull out the stops to block Miers. Miers could, of course, be just as awful as Owen, Brown or Luttig, but even if she is you’re not really any worse off.
The other objection, of course–and I suspect that Belle would largely concede my political analysis and this is the core of her argument–would be to argue that I’m being too coldly political. I can understand the concerns of people like Belle and iocaste that this reflects contempt for the court, and this is intolerable whatever the political consequences. (And I do agree that Dems should make Bush’s cronyism clear, and should largely leave to Republicans the dirty work of confirming her nomination.) But the way I look at it, the court has had mediocrities before and will again, and yet the republic stands. Indeed, much worse than mediocrities; judicial supremacy has become entrenched despite the fact that as World War II started there sat on the Court a justice who held that the first trials of the Scottsboro Boys were constitutional (after all, the state went to the trouble of putting on three separate show trials!) and prevented a Supreme Court picture from being taken in 1924 because he refused to sit next to Louis Brandeis. (And, of course, judicial supremacy–especially with Republicans in charge–is hardly an unequivocal good.) Moreover, even with Miers on it the current Court would be well above the historical mean in terms of intellectual firepower and professional credentials. I think we need to look at more direct results.
Look at it this way. If the Court overturns Roe and strikes down the Endangered Species Act and expands its claim that state universities should have the same legal immunities as 16th century British monarchs and further guts habeas corpus, are you going to be consoled by the fact that the opinion in question is really well-crafted? I won’t. And rejecting Miers can only make these outcomes more likely.