What Should Democrats Do Regarding Harriet Miers?
posted by Daniel Solove
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.
October 23, 2005 at 8:35 pm
Posted in: Constitutional Law, Current Events, Politics
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Responses (4)
Nate Oman - October 23, 2005 at 9:08 pm
Good for you!
Alan - October 23, 2005 at 11:49 pm
I concur with Nate. Good for you. I also have these thoughts. But this comes down to a question of being a principled lawyer. I may not agree with all of say, Justice Scalia’s opinions, but I’m glad he’s on the Court. The Court is at its best when it is full of intellectuals, whatever their stripe.
Paul Deignan - October 25, 2005 at 2:51 am
Don’t think in terms of ideology, think of this as a game of power. The Dems have lost the ideology game a long time ago, but they can still transform and win the “good government” game. In any case, where will the ideologues go? Not to the right. Even in 2004 all but a very few of the Naderites came back and pulled the lever for Kerry.
Bush won because he was seen as more responsible in foreign policy than Kerry and because foreign policy was the deciding issue of the election. Second to that was the turn out Bush got from social conservatives (and he is about to lose that all for his entire party in this one instance).
The dems win by winning. It doesn’t matter if Luttig is the next confirmed nominee, all they need to show their base is that they put up a good fight. Accept Miers and their base will never forgive them in time to win midterms. Miers appears to be a Bush crony and religious wingnut. Appearances are enough to win election.
Presently, they are pursuing the proper course–keeping quiet but not too quite. At the judiciary committee hearing they will show their hand. If they are smart, that hand will be in a meatle gautlet with a velvet glove.
Note to President: You need new advisors yesterday. Fire Card (incompetent) and Rove (tarnished), overhaul and start fresh. This time, allegro con molto spitito.
Paul Deignan - October 25, 2005 at 2:54 am
Ha typo–no don’t “spit at you”, spirito.
(I think we have aready done spitito this past month).
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