Monday, June 25, 2012

I Miss Harriet Miers

I look back wistfully on the Harriet Miers Supreme Court nomination.  Sure, she was unqualified and knew way too little about constitutional law to be a Supreme Court nominee.  But I'd be happier to have her on the Supreme Court nowadays than Alito, who was nominated after she withdrew.

If you're looking at the Court as a technocratic body all of whose members are trying to discover the right answers to complex and difficult questions, she's not the person you want.  But if you're seeing it as a ideological body whose members are simply voting for their preferred policies, you'd rather have an unpredictable person who votes arbitrarily without sound legal reasoning rather than a committed advocate of terrible views.  On health care reform, we're all assuming that Alito will push for as destructive a result as anybody.  With Miers, who knows?  I'd rather have a Magic 8-ball on the bench than someone committed to getting things wrong.

Failing to rush her to confirmation may have been one of the biggest mistakes Democrats made in Bush's second term.  (That's actually not saying a whole lot; things generally went well in the Pelosi / Reid era.  The Gephardt / Daschle era, with the Bush tax cuts and the Iraq War, was when the real horrors of the Bush years made their way through Congress.)  It's not Reid's fault -- he was instrumental in getting her nominated in the first place.  Mostly I'd blame the old senior Democratic Senators around him.  They evaluated her on the basis of her legal competence with an eye to finding flaws in a Republican nominee, rather than seeing her as a chance to put randomness on the court when the only other option was conservative extremism.

Generally I like it when Democrats are partisan, because I think Democrats are right and Republicans are wrong on many issues.  But the interesting thing about this case was the importance of avoiding short-term partisanship (as well as some kind of technocratic fantasy of how the Supreme Court works) to win a long-term ideological war.  Getting caught up in shooting down a GOP Supreme Court nominee was the wrong move.  Recognizing that Bush had poorly served conservative ideology, and supporting his error so that it'd be written in stone, was the right move.
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