We now have trench warfare on the Miers nomination between two opposing armies, both conservative.
In one set of trenches, machine guns blazing away, are National Review, The Wall Street Journal, The Weekly Standard, conservative columnists led by Michelle Malkin, anonymous Judiciary Committee staff members and many constitutional law theorists.
In the opposite trenches sit evangelical leaders such as Chuck Colson, James Dobson and Jay Sekulow, bloggers led by Hugh Hewitt, White House staff members, law professors Ken Starr and Lino Graglia, and many lawyers in private practice.
From each side comes an occasional sortie, yet barring sensational developments we should expect little movement until next month's Judiciary Committee hearings. Meanwhile, liberals are smiling as conservatives attack each other.
Here are two key questions in the dispute: Should a Supreme Court justice be a constitutional law theorist, or is practical experience as a lawyer equally important? Since the conservative goal is to reduce Supreme Court imperialism, is the most trustworthy person for a life appointment someone who has written in favor of judicial humility or someone whose humility President Bush and others have observed firsthand over the years?
Another key question involves religion. Some say any questions about a nominee's religion create a "religious test" for office, which is forbidden by a clause in Article VI of the Constitution. (The Founders included that clause to forbid an equivalent of the British practice of requiring all monarchs to receive Anglican communion.)
Since justices taking office do swear or affirm that they will faithfully perform their duties "so help me God," it seems appropriate to ask nominees whether their beliefs will help or hinder them in fulfilling that oath. (Biblical religion certainly helps by teaching believers to side with neither rich nor poor, to pay no heed to flattery and to obey authority -- in this case the Constitution -- placed over us.)
Here's where I stand: As a professor, I've learned to be skeptical about theorists and to value practical experience. I don't know Harriet Miers, but I've heard very positive things about her from trustworthy people. Her character seems exemplary, and I'm not worried that her degrees are "only" from SMU. I've studied and taught at Yale and Princeton, so I'm unimpressed by ivy and concerned more with arrogance: Intelligence without humility is a big part of the Supreme Court's problem.
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