Stopping Miers

As they used to say in radio, “the hits just keep coming.” George Will, who is the very quintessence of mainstream conservatism, has all but said in his recent column that the Miers nomination should be presumptively rejected.

Wills’ non-deference to the president is on top of the opposition of Bill Kristol, David Frum, John Yoo, and just about the whole of the National Review’s bloggers. In fact, the conservative commentariat is coming fairly close to consensus that this pick is an embarassment to the conservative movement.

That said, we do not currently have a procedure for giving confirmation power to the American Enterprise Institute–although anything can happen. Stopping this nomination will demand that a large number of Senators state definitively that they will vote against her–not necessarily a majority, however, since a seeming groundswell could cause Bush to back off, or Miers to decide to throw in the towel.

So, who might form the core of this opposition to the nomination? The obvious candidates are the far-right of the Republican caucus in the Senate, but the more I think about it, the less convinced I am that this will happen. They care, more than anything, about Roe, and the issues that they see a position on Roe as a useful indicator of future judicial behavior. I believe that, with winks, nudges, and scattered evidence from her past, the Coburns and Brownbacks will be brought onto the reservation. For folks like this, the issue of her qualifications and competence are not really the issue–they care about outcomes much more than process, and they are not a part of the conservative intellectual elite.

So the question is, for whom in the Senate are the considerations that motivate the generation that came up through the Federalist Society (and THAT is really where the opposition to this comes from) relevant? I’m having a hard time actually coming up with much of a list. Put another way, which Senators care more about the quality of the nominee and her ability to exercise intellectual leadership on the court, as opposed to where her vote will come down on particular issues?

That suggests to me that, while the Republicans might provide a dozen or so votes against Miers, they certainly won’t constitute a majority. So if this dies (as opposed to being euthanized because the president decided he just made a terrible, embarassing error), it’ll be because Democrats come out strongly against her. The problem with this is that, while almost anyone that Bush puts up will be about as conservative as (I suspect) Miers is, almost anyone who has superior qualifications and training will be BETTER at shifting the court to the right. So, in a narrowly selfish way, Democrats would serve their self-interest by letting Bush put an underqualified person on the court, who will exercise almost no influence on legal culture and probably little creativity to the conservative bloc on the court.

My judgment is that while self-interest would recommend such a course, it would be a terrible decision for the nation as a whole. The credibility of our institutions is closely connected to the quality of the persons with whom they are entrusted. I would rather have a smart, intellectually curious conservative (like Luttig or Mike McConnell) on the court, than a political hack, if only because I care that Americans continue to hold our judiciary in some kind of regard.

After the excellent Roberts choice, Bush has now chosen for the highest court in the land a woman who would be much better suited to a district court job, or at best a seat on the 5th circuit. Democrats should take their chances on a more qualified nominee, and vote down Miers, and hope that at least a few principled conservatives join them.

Author: Steven M. Teles

Steven Teles is a Visiting Fellow at the Yale Center for the Study of American Politics. He is the author of Whose Welfare? AFDC and Elite Politics (University Press of Kansas), and co-editor of Ethnicity, Social Mobility and Public Policy (Cambridge). He is currently completing a book on the evolution of the conservative legal movement, co-editing a book on conservatism and American Political Development, and beginning a project on integrating political analysis into policy analysis. He has also written journal articles and book chapters on international free market think tanks, normative issues in policy analysis, pensions and affirmative action policy in Britain, US-China policy and federalism. He has taught at Brandeis, Boston University, Holy Cross, and Hamilton colleges, and been a research fellow at Harvard, Princeton and the University of London.