I'm initially disappointed in President Bush's Harriet Miers Supreme Court nomination, but not quite ready to run out in front of the beer truck. Part of the problem with the commentating profession is that it sometimes pressures you to step out before all the facts are known. With that caveat in mind -- and a few more to come -- here goes.
I was counting on the president to nominate a well-known originalist scholar. Since he can pick whomever he chooses, why not select not only a strict constructionist, but someone well known to be among the very cream of the judicial crop?
More than a handful of potential nominees fill that bill, including Michael Luttig, Michael McConnell, Janice Rogers Brown, Priscilla Owen, Edith Jones and others. Few court watchers I know of considered Miers to be in that elite group.
To be sure, the fact that court-watching Bush supporters didn't anticipate the Miers nomination is no reason to oppose her. The question is not whether we all know Miers to be an ideal originalist appointment, but whether, in fact, she is.
Since President Bush knows her so well and professes to believe so strongly in originalism, shouldn't we trust that he wouldn't have appointed her unless she were a highly qualified originalist? But here's the rub. Many conservatives are uncomfortable accepting the wisdom of this appointment on blind faith.
Some may counter that this is hardly blind faith: The president has consistently appointed strong conservatives to the bench. For the most part I would agree, but the Miers appointment, on its face, at least appears compromised, and that's troubling. (While Roberts was a stealth appointment concerning his originalism, there was nothing stealth about his legal credentials.)
On the surface, she is a very close friend of the president's. Friendship should certainly not disqualify a person, but the president has a duty to appoint the most qualified people to the highest court. While personal loyalty is admirable, the Constitution should never be subordinated to it.
I also hope the president isn't merely trying to avoid controversy. Is he so beleaguered that he has chosen to follow the path of least resistance -- to appease the Left? If so, I strongly believe he is grossly misreading history and, more importantly, his conservative base.
To the extent that the president's popularity has waned, it is mostly because he has disappointed his base. He should never worry about avoiding the Left's hand grenades, whose pins are always pulled.
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