The Feld-Blog

It’s always nice when political incentives line up with good policy. Politics might be much better off if they always lined up. But they don’t. Miers, I think, is a great example.

For a close personal friend of Bush, she is incredibly moderate. She is on record donating to Democratic campaigns. She has the support of a few important democrats both in politics, the media and elsewhere. Finally, some influential Republicans oppose her, no doubt an encouraging fact for many liberals. In fact I cant imagine Bush naming a more moderate conservative to the bench. I would guess, in fact, that if Miers goes down and Bush doesn’t stubbornly push her through as he did with Bolton, he would be tempted to name a stauncher ideologue, more prone to conservative activism. This may be a clear case of “Don’t look a gift horse in the mouth.” Or for a sports analogy: Bush has thrown a changeup. He’s not just going to lob the ball to the Democrats. This is probably as close to a compromise as he’s going get. Why would let this glide by, only to be suckered by a craftier more deadly pitch? Why not knock this one out of the park? Because there is more to sitting on the court than ideology.

Even for those of us who claim that litmus-test issues are an awful way to vet a nominee for the court, it is tempting to jump to ideology as the dominant qualification. But then I cant help but be drawn to the nagging idea that perhaps before becoming one of the nine most powerful judges in the country, it might be helpful to have had any experience in the judicial branch of government. She has been working her whole life in the other two branches of government. I am concerned that after decades in the executive and legislative branches, she may not be able to make an appropriately smooth transition to the opposite end of the system of checks and balances. I feel this lifetime of service in other branches of government would nudge her forcefully in the direction of judicial activism, something no one on either side of the ideological spectrum wants. Moreover, as Senior White House Council, Miers has spent a good amount of time trying to circumvent the law rather than enforce it. It is the job of White House council to tell the President whether what he wants to do is legal, illegal or borderline, and if it’s borderline, to show the President how to spin the law and his policy so they appear congruous. This is dangerous training for a candidate nominated for a court already infected by the bug of legislating from the bench.

And so I remain torn. I’m not sure she’s qualified and she certainly doesn’t have the experience, but the odds are good that the next pitch will be much much worse. It’s always nice when political motivation lines up with good policy. Unfortunately now is not one of those times. Should I stick stubbornly to the idealism that a justice must be unquestionably qualified, brilliant and experienced? Or can we compromise some of these characteristics for the sake of checking the possibility of two or three decades of a radically conservative court? I think this is the grueling decision currently facing Democratic and Moderate Senators (Conservative Senators want to wait for that next pitch). I don’t envy them the decision, but this is certainly a time to take the confirmation hearings seriously. For Miers, they will most likely be the deciding factor.