Miers: Compared to What?
By A couple of very smart people argue that–contrary to the argument I made last week–progressives should unequivocally reject Miers. I continue to disagree.
The first argument comes from Mark Kleiman, who argues that the Miers nomination is not a typical zero-sum political game. The argument is a little confusing, because he switches between the substantive and political implications of rejecting Miers. On the latter point, I agree that the Democrats wouldn’t pay any political price for rejecting Miers, although I’m not sure what the benefits will be. I’m not really concerned about the short-term political impact of the Miers confirmation in any case. On substantive terms, I don’t find his argument convincing. He argues:
Miers has two characteristics — lack of intellectual distinction and subservience to the interests of the Bush clan — that are undesirable from both conservative and liberal perspectives. It’s easy to imagine that the person nominated to replace her should she fail of confirmation would be more intelligent and more independent.
As I argued before, from a progressive perspective, Miers’ lack of distinction and the fact that her most salient characteristic is loyalty to Bush are features rather than bugs. Again, it is important to remember that 1)anybody that Bush appoints will be a conservative, and will almost certainly be a conservative who is a strong proponent of executive power, and 2)Bush leaves office after 2008. It strikes me that a Bush hack is rather preferable to someone whose conservatism is lodged in the belief that Griswold should be overturned and the power of the federal government severely curtailed, not least because her subservience to Bush affects a small percentage of issues when Bush is in office and virtually none after he’s left. (It’s worth remembering, too, that she can only serve the interests of Bush if 4 other justices go along with her, and if she can get 4 current justices to join it’s highly likely her replacement will go along too.) And, again, I would rather have conservative constitutional opinions be written less than more persuasively. I also continue to think the idea that putting Harriet Miers on the Supreme Court will somehow threaten its public legitimacy is frankly absurd. Leaving aside the fact that the public doesn’t really pay attention to the Court on a day-to-day basis, if the legitimacy of the Supreme Court can survive Bush v. Gore, another mediocrity on top of the many mediocrities who have already served on the Court is nothing.
Again, I think the crucial question is exactly what tangible harms come from having someone who may not write brilliantly crafted opinions on the court and is not a sophisticated legal theorist. These tangible harms are, I think, negligible, and pale in comparison to the votes a justice casts. Put it this way: Antonin Scalia is a more sophisticated legal craftsman than Earl Warren (who, in fact, was not a particularly skilled crafter of legal doctrine at all.) Would you rather have a court of 9 Scalias or 9 Warrens?
Prof. B prefers the devil we know:
If you’ve got someone who, as Miers is reported to have done, will generously agree to meet with people she disagrees with, listen to their arguments, and then simply dismiss them by saying that she doesn’t agree–without giving you anything to go on about why she doesn’t agree, or how to address the premises she uses to form judgments with–then there’s nowhere to go. I very much fear that, as a judge, Miers will play the role of the fundamentalist you argue with about evolution or feminism or the ACLU, someone who no matter what evidence you present them with, simply says, “no, those things are wrong and evil because I believe they are.”
Respectfully, I have to demur. If you compare a pragmatist like O’Connor to Thomas, the most principled conservative on the Court, I don’t think there’s any question who is more likely to dismiss the ACLU’s arguments out of hand. And I think the same is true of most of the viable alternatives to Miers. There’s just no way that Miers can be any worse than, say, Owen. Even if you take a more palatable choice like McConnell: who is more likely to overturn Roe: somebody with no public record on the question, or someone who has argued publicly that Roe is an abomination? The question, I think answers itself. We know that McConnell will almost certainly vote to overturn Roe, and to uphold virtually all entanglements with the state. (He would probably be better on executive power issues, which is one reason I don’t think he has any significant chance of being nominated, but that’s still not a great tradeoff on balance.) Miers can’t really be worse than most of these nominees, and she could be better. I’m going with the devil I don’t know.