Blame It On the Senate

In reading the most recent Fed Soc blogs on the nominations of Ms. Miers, I must say I'm a little surprised that two big points have been completely overlooked. First is the role of the "moderate Republicans" in the Senate. Second is the fact that the Court moves to the right regardless of the result of the Miers hearings.

Had a Luttig or Garza received this nomination, I doubt that the moderate Republican Senators would have stood solidly behind him. Their history with the fillibuster "compromise" proves very unpromising. If such a candidate had been nominated and challenged by the Demos, I doubt the Republicans would have used the nuclear option. They did not even stand for this principle in the abstract; why would they suddenly invoke it when it makes a practical difference and they would open themselves up to even more charges of partisanship? Cow-towing to Democrats on such a nomination would communicate that not even the Republican party wants to align itself with these "controversial conservatives," and could greatly set back the work that conservative groups like the Federalist Society have done in making conservative ideas part of the mainstream legal dialogue.

Because Luttig and Garza were not nominated, these same moderate Republicans are now up-in-arms. The Democrats seem to be happy enough. This is also a very good thing since the moderate Republicans are the ones that make or break the confirmation. If the Republicans do decide to reject Miers as a candidate, it puts them in a position to have to stick by their guns when Bush nominates a candidate with a more substantial conservative track record. The moderates could not avoid acknowledging the conservative branch of their party as easily the second time around if their reasons for rejecting Miers included inability to determine her jurisprudential views. It would put them in a position to have to take a stand for conservative jurisprudence by legitimizing judges with a solid conservative history. It would be much easier for a conservative judge to be confirmed if the Senate rejects Miers.

Secondly, I'm not as sure as my Fed Soc colleagues that Miers is such a horrible pick. I have to disagree that there is a certain path or a certain set of credentials that reveals a judge has a strong unassailable philosophy. Or even that a woman that doesn't have those credentials is intellectually inferior to those that do. Ultimately, the fears of Federalist Society members should not be that Miers is not intellectual; the fear should be that she does not have a consistent jurisprudential philosophy. Many Supreme Court justices that did not follow what we see today as the typical track were effective nonetheless in this important area, including Marshall, Warren, Harlan, Frankfurter, and Jackson. (http://writ.news.findlaw.com/commentary/20051005_gerber.html) Whatever criticisms can be made of these men (especially Warren and Marshall) not having a consistent judicial philosophy is not among them. The main point is that, if confirmed, I think Miers replacing O'Conner will move the court slightly "to the right." And that is a good thing.

Whatever happens next, it seems the court goes our way. Either the Senate denies her nomination and is forced to support someone with stronger conservative ties, or they confirm her, and we get a controversial candidate slightly more conservative than O'Conner. I'm not sure the Miers nomination is a great idea; I'm just not so sure it's a bad one.