Why Miers?

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So Harriet Miers is the new Supreme Court nominee. Conservatives seem wholly unhappy with this pick. So what was the rationale? Given that she’s currently White House counsel, I’m guessing Bush wanted someone who agrees with his own dictatorial view of presidential powers in wartime. I suggested a few weeks ago that Bush would never pick Gonzales for this spot, because then both he and Roberts would have to recuse themselves in an upcoming and fairly crucial case on detainee matters, Hamdan v. Rumsfeld, which would leave the fate of Bush’s “war on terror” powers in the hands of a pseudo-liberal majority. Nuh-uh. Hence Miers. This seems like an awfully bizarre reason to choose Miers—who is otherwise fairly unqualified—but I can’t really see any other. Unless Bush just likes Texans.

Meanwhile, David Frum makes a pretty persuasive point here:

But here is what we do know: the pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements – the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard – that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is impossible to me to imagine that she can endure the anger and abuse – or resist the blandishments – that transformed, say, Anthony Kennedy into the judge he is today.

Well I don’t think that’s conspiratorial at all; read Jeffrey Toobin’s old profile of Anthony Kennedy in the New Yorker and you get a sense that something like that really does go on. But hey, if the last few bastions of pseudo-liberalism—the press, the universities, the foreigners—can’t influence American public opinion, at least they can influence the judges. Still, whatever leftward shifts may come, it does seem that Miers could do lasting damage to the Constitution in her first few years by giving the president the ability to declare whoever he feels like an “enemy combatant,” and hold ’em without trial. Also, the elite “pressures on a Supreme Court justice to shift leftward” usually don’t include pressure to shift leftward on economic and worker issues: the so-called “liberals” on the court, like Stephen Breyer, are still remarkably business-friendly. That’s not to say anyone should be happy with Miers, least of all liberals, but it does seem like Bush isn’t pushing this court as far to the right as he, in theory, could have.


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