Jack Balkin is a hell of a smart guy, who runs a very meaty blog. His post here is about the best guess I’ve seen anyone give, including me, about where Miers is likely to come out. In essence, Balkin argues that Miers is a throwback to the kinds of judges that the Republicans used to put on the court back in the robber baron era–corporate lawyers who would ensure a comforting environment for business. Balkin’s surmise is that Miers comes out of an environment (Texas corporate law) which tells you just about all you need to know about her, on the economic issues that are the Court’s bread-and-butter. She’s more William Howard Taft, that is, than a Thomas or Scalia.
My best guess is that Balkin is a bit too much of an economic determinist on this one, however. He states that Miers is a “a business conservative who above all wants a smooth ride for capital.” Sure–except for the “above all.” What distinguishes Texas conservatism is the way it combines pro-business (but not often free market) conservatism with evangelical Christianity. Balkin seems to think that, “when the chips are down,” she’ll choose business over social conservatism. But these two things are not, in most cases (internet porn being an exception, and not much of one) in conflict. So my guess is that Miers will end up being a “railroad lawyer” plus a social conservative.
What she will NOT be, and I think Balkin is right about this, is someone looking to shake up the environment that business works in, in the names of grand intellectual plans for constitutional reconstruction. She’s not going to get in the way of governments that do the bidding of business, in the name of the “free market.” She’ll be O’Connor-like on affirmative action, given the support that it gets from large businesses and the military. She’ll be highly deferential to the executive branch.
In short, the folks who should be REALLY scared of Miers are libertarians, who would find her not at all helpful on a range of issues that concern them (from gay rights, war on terror and abortion on the social issues side, to takings and affirmative action on the economic side). The only thing that they should be at all hopeful about where she is concerned is gun control, where there is evidence that’s she in the lock-and-load camp.
Interestingly, most of the libertarians over at the Volokh Conspiracy seem worked up primarily over Miers (non-) qualifications. I’d suggest the real issue for them is how her background will push her to oppose many of the issues they care most deeply about. And to think they could have gotten Michael Luttig or Janice Rodgers Brown. Are they still happy they voted for Bush?