Conservative pundits are raising the expression of disappoinment with President Bush’s nomination of Harriet Miers to an art form. And that’s fine — it’s an extremely disappointing nomination. Moreover, the anti-anti-Miers crowd may well be fanning the flames with their unfounded charges that Miers’ critics are guilty of sexism and elitism. The sexism accusation is reprehensible, the kind of thing you expect from the left. Conservatives were ready to throw a fit had Alberto Gonzales been nominated, and to support wholeheartedly the nomination of Edith Jones. The elitism charge has more superficial plausibiltiy but, as I argued last night, is ultimately unpersuasive.
At some point, however, conservatives need to stop measuring Miers against their ideal of a Justice and decide the basic question of yea or nay — should she be confirmed or not. How conservatives come out may matter. The hearings could easily result in united opposition by Democrats. Miers almost certainly will not give the sort of assurances on Roe v. Wade that Democrats will demand. And, unlike with Roberts, the Dems will not be constrained by a record of excellence or charismatic appearance to vote for Miers. The public’s initial reaction to Miers was far cooler than its initial reaction to the Chief Justice. The only constraint on Democrats will be the sense that Bush might nominate someone worse from their perspective if Miers is defeated. But the opportunity to deal Bush a huge defeat, coupled with pressure from the abortion activists, may prove too hard to resist. Thus, if the Republicans don’t present something like a united front, this nomination could be stopped.
Some conservative commentators have concluded that this is what they want. Ann Coulter said so last night on the O’Reilly Factor (but she apparently didn’t want Roberts confirmed either). George Will also opposes Miers (barring evidence of her brilliance that likely will not materialize) for what John and I consider unsound reasons. Today, Bruce Fein, a stalwart movement legal conservative during the 1980s, came out in opposition. Fein’s views are always worth considering, but I think his analysis is quite flawed, as I hope to explain in the coming days. He also undercuts his credibility when he engages in hyperbole such as this:
If confirmed, Miss Miers can be expected to exceed the obscurity of Gabriel Duvall, who contributed two words to constitutional law (“I dissent” in Dartmouth College v. Woodword) in 23 years of Supreme Court service.
My view (subject to possible revision as the process continues) is that the Senate should confirm Miers. Under all past standards, she is qualified for the position, and the suspicion that she may not be a true conservative does not constitute sufficient reason to oppose the nomination. I will present this argument more fully in a few days.
UPDATE: Reader Brian Sament rises to the defense of Gabriel Duvall:
I’ve had just about enough of the blogosphere’s incessant Gabriel Duvall-bashing. Mr. Duvall’s contributions were for the most part outside his written opinions, but that is not to say that he didn’t write any. As the Oyez site pointed out:
“If his vote was vital, Justice Duvall’s service to the Supreme Court was otherwise unobtrusive. He penned opinions for the Court in only seventeen cases, none of them of constitutional moment.”
And as for dissents, what student of the law can forget Duvall’s brilliant dissent in Queen v. Hepburn (1813)? As the Oyez site puts it:
“In Queen v. Hepburn, 11 U.S. (7 Cranch) 290 (1813), Duvall wrote only briefly but compellingly in dissent from the Court’s refusal to allow, in trials in the District of Columbia, hearsay evidence in support of a claim to free status on the part of a person alleged to be a slave.” (Actually, just reading that description right now – and speaking seriously here – that sounds like an interesting case that contains both technical evidential and moral issues.)
Shame on Bruce Fein for libeling the memory of this great American constitutionalist.