Wednesday, October 05, 2005

On Miers and nominations

As most of you know, I'm no lawyer. Consequently, I take advice on matters of legal nature from those lawyers I have come to trust and whose opinions make sense to me. The fine gentlemen at Power Line, for example, and Hugh Hewitt, and Glenn Reynolds have all earned my respect and valuation of their opinions. So when it comes to Supreme Court nominations, I tend to check in with them to see where their thoughts are headed. Like the Power Line triumvirate and others, I must admit to some disappointment at the nomination of Harriet Miers as Supreme Court Justice. Being that I'm not a lawyer, however, my disappointment comes from a different source.

Simply put: she's not a judge. Never has been. While I'm far from a fawning accolyte of the judiciary, I recognize when someone has experience in a field and when they don't. If we were considering her for a judgeship out here in Loudoun County, that'd be one thing. I have absolutely no difficulty with someone who's not even a lawyer getting elected to a judge's position in a local or county court. Some of the finest decisions written from the benches have come from people who weren't so burdened with the trappings of the legal profession that they could no longer made a rational judgement.

But this isn't a county court we're talking about and the position isn't one that's going to be open to election in 4 years. It's a permanent one and it's the major leagues. In fact, so far as courts go, it's the major league. The important thing about a judge, to me, is whether that person routinely substitutes their values and personal likes/dislikes for the text of written legislation. Do they, in a nutshell, rule by the rule of law or by the rule of what they think the law should have said? Serving in lower courts is where that routine becomes apparent. The history of a judge's rulings - how often they simply set aside the plain language of a law and ruled their own way and how often they were overturned on appeal - should be the paramount question in elevating a person to the nation's highest court. If a judge can't see fit to rule as the law has been passed in a lower court, they're surely not going to suddenly change their stripes when they sit down to the big game and know they can't be asked to leave.

There's absolutely none of that history to look at where Harriet Miers is concerned. Has she ruled in accordance with the written law? Why, we can't answer that question. She's never ruled on a case at all. How often has she been overturned on appeal? Sorry. Never been appealed because she's never ruled. If we, as conservatives, can cast big, gnarly stones at the Democrats and their increasingly far-left base for wanting to turn the confirmation process into an idealogical litmus test, then we have no basis for suggesting that Miers' confirmation should be tossed because we don't know her conservative values are conservative enough. John Roberts was confirmed, rightly so, because his track record as a judge and a jurist were impeccable as regards his regard of the law as written. Those 22 Democrats who voted against him had nothing but their liberal values to hold against him and the center-right blogosphere roasted them all for it. As they should have. To complain aobut Miers' conservative credentials now just smacks of hypocrisy.

So, am I happy that Miers is the nominee? Hardly. I wanted someone who had that proven record of ruling by the law instead of their tortured flogging of the Constitution to come up with things found nowhere on that document. Miers doesn't fit that bill, not by a longshot. But - and this is the key item, here - she is the nominee. The time for complaints over her nomination is done and gone and the only question that should be occupying the minds of my fellow conservatives now is whether we should call for the confirmation of this person to the High Court. I support President Bush. That does not translate into support for Harriet Miers. She'll get my support or she'll see the lack of it on her own merits. Where the President can help her best is by making sure we all know as much as we can about her rather than hoping to get a confirmation based solely on that fact that he's the one who nominated her.

I await with a hint of hope.

Update: Jack Kelly over at Irish Pennants is no cheerleader for this nomination, either, but its effect on conservatives gives him a bit of pause.