October 03, 2005,
Harriet Miers could turn out to be a solid conservative justice, with an intellect and commitment to constitutional rectitude to match Antonin Scalia. The president may believe that she is, and is likely to remain, a solid legal conservative. In accepting the nomination, she said, “It is the responsibility of every generation to be true to the Founders’ vision of the proper role of the courts in our society.” That is something of a platitude; but it is, at least, the right platitude.
When the American Bar Association came out for legal, and subsidized, abortion, Miers argued that members of the organization should be allowed to vote on it first. Perhaps she would have similarly democratic inclinations and a similar willingness to buck elites on moral issues on the Supreme Court.
But none of this adds up to persuasive evidence that Miers would pull the Court, and its constitutional law, back toward its proper source. John Roberts was a “stealth nominee” in that he did not have declared positions on such questions as the constitutionality of affirmative action and anti-abortion laws. But Roberts possessed stellar professional qualifications, had impressed everyone who came in contact with him, had written well-reasoned judicial opinions, and had conservative legal heavyweights willing to vouch for his soundness.
These things are either not present, or are present to a smaller degree, in Miers’s case. Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field. It seems highly unlikely that she will be the kind of justice who, in combination with Roberts, Scalia, and Thomas, will attract additional votes by the sheer force of her arguments. This nomination was a missed opportunity.