Miers, Cronyism and the Court
By Brad Plumer makes a good point about Miers: “Still, whatever leftward shifts may come, it does seem that Miers could do lasting damage to the Constitution in her first few years by giving the president the ability to declare whoever he feels like an “enemy combatant,” and hold ’em without trial.” The most obvious recent precedent for Miers was Truman’s nominees, whose most salient characteristic was going along with the desires of the executive branch (although, in fairness, Burton did refuse to uphold Truman’s steel seizure.) In Truman’s case, this deference to the executive branch did have one benefit: the Truman administration, largely because of the Cold War, started to file briefs in favor of civil rights, and Vinson, Burton and/or Minton–despite being quite conservative overall–supported a number of major civil rights decisions, including Shelley v. Kramer (ruling that discriminatory housing covenants are unenforceable) and Sweatt v. Painter (exclusion of blacks from UT Law School was unconstitutional.) Obviously, a justice who will defer to what this executive branch wants is much worse; as Plumer says, we can expect Miers to strongly support large expansions of unchecked presidential authority to prosecute the “war on terror.”
Another interesting issue with respect to Miers is: even if she may be more moderate than the justice who Bush would nominate in her place, should progressives oppose her nomination because she’s to patently unqualified? Iocaste makes a strong case for this proposition. I’m not entirely sure, though. With respect to federal agencies like FEMA, iocaste is certainly right. FEMA actually has particular tasks that need to be carried out effectively, and I’d rather have a competent conservative than an inept liberal heading the agency. With the Supreme Court, though, I’m much less convinced. (Indeed, on those terms, I’m sure it doesn’t apply; I would definitely rather have an inept liberal than a brilliant conservative on the Supreme Court, although that’s not the option Miers presents.) The most important thing about a justice is their vote outcomes, and Miers is 1)just one vote and 2)the vote outcomes of a different Bush nominee are likely to be as bad or worse. Of course, a justice also has to write opinions, and if Miers turns out to be incompetent this could create some doctrinal problems. But I’m not sure how serious this is; it seems to me–although I am certainly open to evidence to the contrary–that the Mintons and Van Devanters of the world basically just pass without really leaving any particular stamp on the law, rather than having serious long-term negative effects. A court of 9 Mierses would be disastrous, of course, but that won’t be the case either; there remain a lot of high-wattage bulbs on the Court. There’s no question that putting someone of Miers’ qualifications on the Court is suboptimal, but the question is whether it’s worth risking a Janice Rogers Brown or Priscilla Owen in order to prevent Myers from getting the job. I’m inclined to say “no”; I think an Owen or Brown would do a lot more damage even if they’re more conventionally qualified. But I’d be interested to know what others think (and, of course, this is complicated by the fact that there are some crucial variables that we really don’t know about: how conservative Miers really is, who Bush would appoint in her place, whether the Senate could block a really awful nomination.)
On the other hand, it does seem to me that people who claimed that the Democrats were obligated to vote for Roberts because he was “qualified” are certainly bound to tell the Republicans to oppose Miers…