In nominating Harriet Miers for the Supreme Court, George W. Bush made one of the biggest mistakes of his presidency. Having suffered the humiliation of having the intellectual wing of his own supporters shoot down his nominee, Bush has a golden opportunity to restore excellent and demonstrated ability, rather than stealth, as the most important qualification for a Supreme Court nominee. Bush must not miss this opportunity.
The Miers nomination was, as Robert Bork put it, “a disaster on every level.” Rather than putting forward someone with impeccable qualifications and a demonstrated ability to lead the nation’s highest court, Bush chose a supposedly “safe” pick- safe both because he knew how she would vote and because she had never publicly expressed any contraversial views. The broad response against this nominee was heartening and inspiring for those of us who are increasingly cynical about politics. As David Frum of National Review said upon Miers’ withdrawal- “[t]he system worked.”
In order to make up for the Miers mistake and set an important precedent for future nominees, President Bush should now appoint the anti-Miers. That is, he should appoint someone with (1) the longest paper trail of excellent scholarship he can find; and (2) someone respected by both the let and the right as being of the highest intellect. There are several excellent choice who would fill these qualifications, but I think probably the best selection would be 10th Circuit Judge Michael McConnell.
McConnell has several important factors working in his favor (for a similar defense of picking McConnell- see this post):
1. He is respected as having an incredible intellect by both the left and the right. It is uncontroversial to say that he is one of the most brilliant conservative academics of his generation.
2. He would have support from many of the intellectual on the left, many of whom signed this letter in support of his confirmation to the Circuit Court. Signatures of this letter include Cass Sunstien- currently the leading liberal academic in the country by many measures.
3. He holds many conservative viewpoints that should please those who voted for Bush- including unequivocal opposition to Roe v. Wade.
4. He was recently confirmed to the Circuit Court, without any threat of filibuster, so his nomination may not trigger a fight over the nuclear option.
5. He has a very long paper trail- meaning that he has defended his views in public and has had to put his thoughts to the test.
I believe the Robert Bork precedent has been overemphasized to the point where many wrongly believe that no one with a public record on important constitutional issues can make it to the Supreme Court. By nominating McConnell, George W. Bush can obliterate the Bork precedent. The juxtaposition between an embarrassed Harriet Miers- the ultimate stealth candidate- having to withdraw, with Michael McConnell overwhelming passing through the Senate, would be a powerful precedent for future nominations. It would once again establish excellence, and not stealth, as the primary qualifications for a Supreme Court nominee. By making this move, George W. Bush can turn one of his administration’s biggest mistakes into one of its most important achievements.