Ed Driscoll

Nomination Reparation

Over at Tech Central Station, Ryan Sager has some thoughts on the Miers withdrawal:

The Harriet Miers nomination is dead. Long live the Harriet Miers nomination.

The political fallout from the Miers withdrawal will likely be minor. The Democrats will get a day of Snoopy-dancing, and conservatives will get a day of tearful embraces — brothers and sisters laying down their arms. But the long-term impact on the judicial selection process is (at the risk of being optimistic) likely to be positive.

If nothing else, Miers has proved that the vaunted “stealth nominee” tactic is a game of Russian roulette — not just for the Constitution and the American people years down the line, but for the president pulling the trigger in the here and now.

Sure, with the perfect, straight-A, spotless-attendance, gold-starred, shiny-haired, white-teethed, adorable-childrened, Reagan-White-House-tenured Judge John Roberts, you can get away with it. Conservatives have already forgotten how perplexed and disappointed they were by Bush’s first Supreme Court pick. The sheer glint in his eye and unflappable competence calmed them like a cool, September breeze.

But there just aren’t that many John Robertses in the world, with impeccable resumes and non-existent paper trails, both at the same time. Jokes about cloning John Roberts were made when he was confirmed. Now, conservatives are thinking of lifting Bush’s federal-embryonic-stem-cell-research-funding ban — if it might help the process along.

Bush found out that if you’re going to eliminate from the selection process every serious and principled conservative jurist and legal scholar right at the outset, there’s a pretty limited universe of qualified candidates to chose from. So limited, in fact, as to be virtually non-existent.

Now that Miers has left the stage, there is the risk that a petulant president will pick a nominee wildly unacceptable to his conservative base, but confirmable by the Democrats and some GOP moderates — simply out of spite toward those who betrayed him (“I know it was you, Frum. You broke my heart!”)

If he takes responsible counsel, however, he will begin looking at the serious conservative candidates (yes, likely women, such as Priscilla Owens, Janice Rogers Brown, Edith Jones or Edith Clement) and a serious confirmation process.

But aside from the immediate crisis, this entire episode should also make conservatives think a little harder about the twin ideas many of them had advanced about the judicial confirmation process in general: that a president is due a virtual rubber stamp on his desired nominee, short of massive ethical problems or utter incompetence, and that a nominee cannot properly be questioned on any matter that may conceivably come before the Supreme Court.

He’s right–but only because of how important the Supreme Court has become in modern politics–especially to the left. It’s “almost as if God has spoken”, as that well-known theocon, Nancy Pelosi famously uttered over the summer after the Kelo decision came down.

When the stakes were a little lower–when the wasn’t a culture war dividing the country and the Men In Black weren’t our de facto rulers, cronyism wasn’t much of a concern, as this recent Knight-Ridder piece makes clear:

Franklin Roosevelt regularly chose close associates to sit on the court, but none turned out to be an embarrassment. John F. Kennedy chose Byron White, a friend so close he used to participate in Kennedy family football games.

But three picks by Harry Truman rank among court watchers’ worst, at least in the 20th century. Sherman Minton, Harold Burton and Chief Justice Fred Vinson all were close associates of Truman, but none left a favorable mark on the high court. The 19th century is replete with political cronies who had undistinguished careers on the court.

“The truth is that if you compare Miers, just on paper, to some of the political cronies who have wound up on the court, her qualifications put her square in the middle,” said court historian David Garrow. “Thirty or 35 years ago, no one would have thought there was anything out of the ordinary about it.”

But Garrow said Miers’ nomination, coming on the heels of John Roberts’ confirmation, makes her seem less impressive.

“She’s following a 24-karat All Star onto the court,” Garrow said, referring to Roberts’ stellar credentials. “By comparison, she looks inescapably unqualified.”

Let’s hope the next nominee, whoever he or she is, won’t appear that way.