RANDY BARNETT ON HARRIET MIERS:
Harriet Miers is not just the close confidante of the president in her capacity as his staff secretary and then as White House counsel. She also was George W. Bush’s personal lawyer. Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton’s description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum? . . .
While the Senate once successfully resisted President Lyndon Johnson’s attempt to nominate his own highly able crony, Abe Fortas, to be chief justice, perhaps the performance of senators during the Roberts nomination reduced the deterrent effect of “advise and consent.” Judiciary Committee Democrats spent half their time making speeches rather than questioning. What questions they did ask were not carefully designed to ferret out the nominee’s judicial philosophy, favoring instead to inquire about his feelings, or whether he would stand up for the “little guy,” or bemoaning his refusal to telegraph how he would rule on particular cases likely to come before the court.
For their part, Senate Republicans were content to parrot the empty line that a judge “should follow the law and not legislate from the bench.” Sit tight and vote seemed to be their approach. By refusing to demand a nominee with a judicial philosophy of adherence to the text of the Constitution–the whole text, including the parts that limit federal and state powers–Republicans did nothing to induce the White House to send up a nominee who was at least as committed to limits on federal power as Chief Justice William Rehnquist and Justice Sandra Day O’Connor had been.
Read the whole thing.
UPDATE: Mickey Kaus is bragging about his prescience. Advantage: Kaus!
Beldar, meanwhile, is unpersuaded by Barnett. And Patrick Ruffini is making the case for Miers.
ANOTHER UPDATE: Greg Djerejian says he’s flabbergasted: “One of the (very) few things that has impressed me of Bush of late was his willingness to not buy into all the ‘diversity’ hoopla and pick a hugely qualified judge to lead the Supreme Court. He did that, in spades, with John Roberts. But, in one shot, he’s now squandered all that good will. . . . It’s ultimately that she’s just not Supreme Court timber. Harry Reid can cheer-lead her if he wishes, showing major Democrats don’t care a whit about serious constitutional credentials on the bench either, but those of us who are proud of this court must demand better.”
MORE: A bad sign — the first Sen. Hruska reference.