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.


Greg Hao said...

Isn't this just a case of the grass is greener? Now, I get that pretty much anybody with two brain cells to rub together knew that Alito a dogmatic corporatist creep (no matter what he said during his confirmation hearing) but just because we don't know anything about Miers doesn't mean she wouldn't have voted the same way as Alito…

Nick Beaudrot said...

But there is a more than zero probability she would have voted differently. Alito was always going to be a down the line supporter of the Republican agenda (not for instance that while he was compared to Scalia, Scalia dissents from the cases that find excessive punitive damages unconstitutional while Alito supports them).

CreidS said...

I've gotta disagree, Neil.

I know it looks like every case that comes down the pike is a political one. And each year, a few are.

But the Court has, literally, 10,000 case on their docket as of right now. [] They get to about 150-200 of those each year, in one way or another. Each Justice writes the equivalent of a large tome on mind-bending, quantum physics-esq issues. The hard stuff isn't constitutional, either. Take a look at abstention doctrine on wikipedia. Or delve into tax law -- which combines the readability of Kant with the phone book.

It's no wonder that the media pick up on one or two easy to retell cases a year.

In these uncovered cases, you'll often find that ideology doesn't apply. There really isn't a Republican approach to applying Younger abstention doctrine, for instance. It really has to do with how the Federal Courts operate in some abstract ways.

Miers was nearly a dangerous precedent. Her appointment would have broken the long record of competence that all (or nearly all) Justices have displayed. I may not like Scalia's jurisprudence, but he is capable of forming an opinion on the toughest, most abstract matters.

Make her ambassador to England; but not a Justice.

Neil Sinhababu said...

If it were an issue of having all 9 justices be Harriet Miers, that would be a problem. But I'm happy to count on the other 8 to split at least 5-3 in favor of the right answer when it's time to make good law in a nonideological way.

low-tech cyclist said...

Does this matter? It was the wingnuts, not the Dems, that forced Bush to withdraw the Miers nomination. At best/worst, the Dems may have supplied the wingnuts with some ammunition.

Neil Sinhababu said...

If the Dems come through with 40 votes for confirmation, Bush might very well take it and put his girl on the court, to the horror of the right wing.

andrew long said...

I don't know that Bush would have put his girl on the court. She was a trainwreck from News Cycle One, and while it's true it was the wingnuts who fomented it, not the Dems, it was also diverse GOPers like Specter, Graham, and Brownback who publicly voiced reservations. As far as I can remember, Leahy and Schumer really let this one play out as far as they could stand it. Even then Specter and Leahy said there was no urgent problem and they announced the start date for hearings. Graham and Brownback probably torpedoed Miers by asking for her memoranda and briefs. That gave Bush a usable cover.