A Three-D Appointment to the Supreme Court

The nomination of Harriet Miers to the Supreme Court is a cop out. She may be fine. Who knows? Well, nobody. President Bush has rejected distinguished jurists in favor of playing gender politics and making a disappointing nomination.

It's a shame that Supreme Court nominations are so contentious that the nominee must have a short paper trail. But this is ridiculous. We can hope that she is a judicial conservative. But, if she is confirmed, we won't know anything about her philosophy until she begins to make decisions on the Court.

I suppose I feel (without much ardor) that--ho hum--she should be confirmed if only because the Constitution gives the nominating power to the president. Barring some extraordinary revelation about her character, the Senate should vote to send Ms. Miers to the highest court in the land. But nobody should be happy: If Miers is a conservative, it's apparently a recent thing--she has financially supported Al Gore and Lloyd Bentsen in the past. The mind reels.

Like Bill Kristol, I am "disappointed, depressed, and demoralized." Maybe after the press lashing Bush took for mistakes made primarily by New Orleans Mayor Ray Nagin's and Louisiana Gov. Loco Blanco during Hurricane Katrina, he simply went wobbly. Here is what Powerline says:

"Various helpful Democrats and media people have advised President Bush that, since he has been weakened by [fill in the blank], he can't risk a battle with the Senate Democrats and should nominate a 'consensus' candidate, i.e. a Democrat/moderate/abortion rights advocate, or whatever, to the Court. The President rightfully rejected this thinking with the Roberts nomination, which turned out to be one of the few political successes of his second term. The reason the Roberts nomination was successful politically was the nominee's obviously overwhelming qualifications for the job. Bush could have done the same thing once again, with any of a number of superbly qualified candidates. He should have nominated another great conservative, and dared the Democrats to filibuster him: the resulting political fallout might have changed the dynamics of Bush's second term in the administration's favor, and we would have wound up with another great jurist on the bench."

Conservative blogger Hugh Hewitt asks, "Do you trust him?" Hewitt is happier than I am:

"...Judges Luttig and McConnell are the most qualified nominees out there, but I think from the start that the president must have decided that this seat would be given to a woman, and it is very hard to argue that she is not the most qualified woman to be on the SCOTUS for the simple reason that she has been in the White House for many years."

Let me understand this: We should trust the president's judgment when he passes over the more qualified nominees in favor of a less qualified woman?

David Frum points out that this is an "unforced error:"

"[I]f Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either.

"The Senate would have confirmed Luttig, Alito, or McConnell. It certainly would have confirmed a Senator Mitch McConnell or a Senator Jon Kyl, had the president felt even a little nervous about the ultimate vote.

"There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?"

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