Will consistency be the first casuality?

The train wreck that the Miers nomination has become is simultaneously painful and fascinating to observe. One nuance I find particularly noteworthy is the way in which many conservatives ignore the tension between opposing Miers on ideological grounds and having spent the past five years arguing that the president has the right to have qualified nominees confirmed regardless of their ideology, so long as they are not extreme. Indeed, while conservatives argued that liberal Democrats should vote to confirm qualified conservative nominees (and that moderate Republican Senators certainly should), some conservatives now oppose Miers because she may be moderate or because she’s not the right kind of conservative. I discussed this tension in my last Daily Standard column.

Today, Ed Morrissey addresses this matter. He writes:

Several people have criticized the conservatives who have questioned the wisdom of this nomination, pointing out that we have argued that Presidential prerogatives apply to executive appointments. We have argued that all nominees who get through committee deserve a fair up or down vote in the Senate. I firmly believe that. However, I also believe that the President has a responsibility to select nominees that meet minimal qualifications for the highest court in America in order to get that benefit of the doubt, and based on Miers’ performance in the last couple of days, I highly doubt that Bush met that test in this one instance.

I think Ed has confused questioning the wisdom of the nomination (which I certainly do) with wondering whether a “no” vote can be reconciled with past conservative arguments on the subject. In attempting to perform this reconciliation, Ed has made two smart moves. First, he characterizes the past conservative argument as calling for “a fair up or down vote in the Senate.” That’s been a conservative argument since 2003, when the Republicans gained the majority and the Democrats began filibustering. But before that, conservatives argued that Democrats and moderate Republicans should vote in favor of qualified mainstream conservative nominees. And that has remained part of the conservative position. That’s the import of references to the fact that virtually all Republicans voted to confirm Ruth Bader Ginsburg. And it’s the basis for criticizing the 22 Democrats who voted against Roberts.

Ed’s second smart move is to argue that Miers isn’t qualified for the Supreme Court. The problem here is that by historical standards, her resume shows her clearly to be qualified. But the resume isn’t necessarily dispositive. If one can delve more deeply into its specifics, or if Miers fails her job interview (i.e., the confirmation hearing), then conservatives can claim they rejected her because she was unqualified, not because they had doubts about her conservatism. And we can overlook the fact that the hue and cry against Miers predated any evidence, trumped up or otherwise, that she’s unqualified.


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