What Should Democrats Do Regarding Harriet Miers?
Paul Horwitz at PrawfsBlawg raises the difficult strategic dilemma for Democrats on the Harriet Miers nomination:
Therein lies the Democrats’ dilemma — actually, a double dilemma. 1) They do not want to oppose Miers loudly if they think her replacement might be a Luttig or a Brown, both because those judges are a more potent threat to their desired outcomes and because such nominations would be a political and fundraising prize for conservatives. 2) They also may not want to be on record as viewing mediocrity as a disqualification for the Court, since it constrains their own future choices.
Put slightly differently, the argument for Democrats in favor of Miers is this: Although Miers is relatively unknown, there are some indications that she might be moderate, even liberal, on key issues. An alternative replacement for Miers might well be much more firmly committed to conservative positions and be a more reliable conservative vote. If Miers turns out to be a consistent conservative vote, there are many indications that she won’t be a great superstar on the Supreme Court, and hence, she won’t be as effective as a replacement who might very well be a superstar. Furthermore, if Miers gets appointed, it will perpetuate great tensions amongst the Republicans.
Should this argument incline Democrats toward supporting Miers?
The liberal and political strategist in me is enticed by this argument. On the other hand, the intellectual and academic in me bristles at putting somebody on the Supreme Court who, by all indications thus far, does not seem to have the qualifications to be a great Supreme Court jurist. Ideally, I want a Supreme Court filled with brilliant distinguished jurists.
The problem is that a brilliant distinguished conservative justice is likely to be very effective at crafting persuasive opinions, at steering the direction of the law, and at having a lasting impact on the Supreme Court. A mediocre justice might not be likely to have these effects.
Thus, the difficult question is: Should one should favor a mediocre justice who might vote the way one wants or who will do the least amount of damage or the brilliant justice who might have more of a dramatic impact in ways one might disagree with?
Ultimately, the academic and intellectual in me wins out. I still like to believe that a Supreme Court justice is more than a vote, and that intelligence should trump ideology. I put my faith in these beliefs, but I spend many an uneasy night thinking about this issue.