by Matt Barr

Red herrings on Miers

You've read the more blistering critiques of the Miers nomination by now. If you haven't, read George Will's here, David Bernstein's here, Stephen Bainbridge's here, and Pat Buchanan's here. Note what none of them is saying.

Not one of them is complaining that the way Miers would be likely to vote on certain hot-button issues is in doubt. There are people, I'm sure, whose investment in caring about the Supreme Court consists entirely of whether it will reverse Roe v. Wade. The President this week demonstrated he might be one of them. (That's unfair, he probably cares how she would vote on War on Terror issues, too.) But the nomination is indefensible quite apart from any concern over how she would vote on this issue or that. The most principled critics, including all of the above, are uninterested in stacking the votes on the Court to make sure individual cases come out one way or another.

This isn't The Pelican Brief.

Not one of them is saying that the fact Miers has never been a judge is a necessary and sufficient disqualification. Buchanan probably puts it best in context:

This is not to disparage Harriet Miers. From all accounts, she is a gracious lady who has spent decades in the law and served ably as Bush’s lawyer in Texas and, for a year, as White House counsel.

But her qualifications for the Supreme Court are non-existent. She is not a brilliant jurist, indeed, has never been a judge. She is not a scholar of the law. Researchers are hard-pressed to dig up an opinion. She has not had a brilliant career in politics, the academy, the corporate world or public forum. Were she not a friend of Bush, and female, she would never have even been considered.

She's never been a judge. So has she been a scholar, professional or amateur, on constitutional issues? No; so has she had a remarkable career doing anything? The inquiry starts with judicial experience, and it should. After all, a large majority of Supreme Court Justices were judges elsewhere when seated -- because judicial experience is relevant. It's not dispositive. But Miers can't overcome her lack of judicial experience because she has demonstrated no other attributes or characteristics that ought to assure anybody she can take a place on the highest court in the nation and excel.

Not one of them is saying that the President isn't owed substantial deference in his appointments. Deference means in close cases where you might disagree, you give the benefit of the doubt. This is not a close case. Pick a relatively unknown judge; pick a respected if relatively undistinguished Senator; pick an unknown lawyer with a high-powered constitutional law practice, and you'll get deference. The benefit of the doubt isn't an unlimited license.

Defenders of this indefensible nomination need to stand down on the patronizing mockery and quit setting up straw men to argue with and prove that, as best we know before her hearings, Miers is qualified on the merits. None of this needing to wait for the hearings; there are 100 people who could have been nominated who would have gone into their judiciary committee inquiry with a rebuttable presumption of being qualified.

America doesn't need the best Secretary of Housing and Urban Development available, but it deserves the best judges on the Supreme Court. The job is far more important than President Bush or defenders of the Miers nomination are treating it.

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