Avoiding Future Quagmiers

Following weeks of intense scrutiny and bruising criticism, Harriet Miers withdrew her nomination for Associate Supreme Court Justice last Thursday. She ultimately claimed that her withdrawal came as a result of the continuing pressure placed upon her to release her White House documents. More specifically, she expressed in her letter of withdrawal the belief that releasing these documents would set a precedent limiting executive privilege. Although it can be debated whether her rationale for withdrawing to preserve executive privilege is reasonable, her decision to withdraw was undeniably the correct one.

Much of the anti-Miers vitriol swirling around her nomination was spawned from a conservative fear that her views on critical social issues, such as abortion, were unclear. Sen. Sam Brownback, R-Kan., for one, refused to endorse her out of a fear that she would fail to retain a strictly conservative judicial philosophy. Miers’ unclear judicial philosophy is a product of her lack of judicial experience. If Miers had previously served in a lower court, then she would have, no doubt, written up opinions outlining her beliefs on a number of constitutional issues.

In killing her nomination, conservative Republicans effectively missed the point. They were clearly looking for a predictable right-leaner, not necessarily a talented scholar of constitutional law. Bush’s mistake was in failing to choose someone who fulfilled the first attribute while also nominating someone of unknown judicial expertise. Harriet Miers might have still been confirmed had she consistently demonstrated a high level of constitutional acumen. This was how, despite a relatively thin paper trail and his refusal to state explicitly his positions on certain constitutional issues, former deputy Solicitor General John G. Roberts survived his nomination process to become Chief Justice. On the contrary, many of the senators that spoke with Miers were less than enthused with her knowledge of the Constitution. In fact, the chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa., declared upon speaking with her that she needed “a crash course in constitutional law.”

While we applaud Harriet Miers’ decision to withdraw, we hope that this doesn’t motivate President Bush to nominate a far-right justice to please his base. History shows that nominating another intelligent, affable legal mind along the lines of Roberts—no matter how conservative—would all but ensure an easy confirmation battle. But it is also essential that President George W. Bush preserve the balance in the court by replacing Sandra Day O’Connor with a similarly moderate nominee. This is due to the fact that O’Connor has, for a very long time, been the Supreme Court swing-vote. If she is replaced with a strictly conservative justice, then the opinions of the conservatives on the court would always vote in the majority, consistently rendering null the viewpoints of the other, more liberal justices. As the majority of United States citizens consider themselves to be political moderates, having a strictly conservative coterie of justices exclusively interpreting the Constitution for years to come ill serves the national will.