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October 03, 2005

A gentleman's D-

I realize I'm a pretty tough grader. But the nomination of Harriet Miers looks like what happens when your kid has a homework assignment to interview an important member of the community, and the day before it's due, your kid wakes up to the due date and asks to interview you.

This nomination seems to represent a remarkable change in Bush's attitude since last March, when he nominated John Bolton to the U.N. Bolton was nominated by a confident president, ready and even eager for a fight. Bolton had some trouble in the Senate. So now, we've had two Supreme Court nominations by a president who seems totally lacking in confidence and appears far more interesting in trying to sneak through. Even though Bush campaigned on a promise to appoint Supreme Court justices like Scalia and Thomas, he's going for nominees with negligible "paper trails." This makes him seem embarrassed about his own position.

The Left is gloating. Al Qaeda likes the nomination, too, for the weakness it shows (only kidding I think). Osama bin Laden, however, is still dead.

After the Souter nomination hearings, I wrote an anonymous piece called "Persecution and the Art of Being Confirmed." It was a slightly-tongue-in-cheek pseudo-Straussian analysis of Souter's testimony suggesting that a careful reading would show that Souter actually was a conservative. (I was totally right, wasn't I? Not.) But now there are eerie reverberations from the Souter era, including the fact that both he and Miers are advanced-in-age unmarried people. Already the Wonkettes of the world and their allies are throwing around innuendo about her. Of course, given that this is now 2005, someone has already started a "Harriet Miers" blog (which has more traffic in one day than I have in a year) and a Luttig blog.

Finally, and more seriously, one of the best critiques I've seen is by Todd Zywicki at The Volokh Conspiracy, who distinguishes between justices who change the voting pattern of the Court (Rehnquist) and those who change the legal culture through the intellectual weight of their view of the law (Scalia and Thomas).

Bush's back-to-back appointments of Roberts and Miers [are] a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture. One suspects that the best that conservatives can hope for from the two them is that they will consistently "vote right." But neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture. I suspect that this is the source of the conservative outrage about Miers. In addition, historically those who come to the Court without a clear jurisprudential philosophy almost always end up moving left, which may add still further to the concern about her apparent lack of intellectual heft. Simply because she has stood up to the political criticism that she has received working in the White House does not mean that she will be able to withstand the intellectual criticism that she will receive. Writing a persuasive Supreme Court opinion that will hold a majority is a whole different ball game from stonewalling the Washington Post reporters.
If that doesn't depress you, nothing I can say will.