The World Needs More Ninjas

The Weekly Standard asks if Bush apologetics would act the same if a Democratic president was to nominate a person for the Supreme Court as underqualified as Harriet Miers.

In other words, trust Bush–or at least wait until the Senate hearings before passing judgment on Harriet Miers. For over two weeks now we’ve heard White House aides and pro-Miers conservatives parrot some variation of this argument. A charitable interpretation might be paraphrased as follows: Just be patient–when Miers goes before committee, she’ll dazzle everyone with her punctilious mastery of constitutional law. A not-so-charitable interpretation might go like this: As long as she votes our way on the Court, what more do you want? So let’s quit all this elitist nonsense about “qualifications” and “cronyism” and give her a chance.

If the pro-Miers forces mean to imply the former, then yes, they are correct to say the president deserves at least a modicum of deference in his selection. But if they mean the latter–that how Miers will vote is all that matters, and her credentials be damned–then conservatives should be aghast.

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It is useful to construct a hypothetical here. Imagine a Democratic president, one with fairly solid street-cred among his party’s base. Imagine he stated his intent to nudge the Court in a more liberal direction. Imagine he had once named John Paul Stevens and Ruth Bader Ginsburg as his favorite justices, the models for his own picks. Imagine, then, that this president chose his own White House counsel for the Court, a woman with no record of constitutional jurisprudence. Imagine that, to appease pro-choicers who were skeptical of how she’d vote on Roe v. Wade, the president mentioned that his nominee was a Jewish woman like Justice Ginsburg (wink-wink). Imagine, finally, that the first lady and a top White House staffer painted her opponents as sexists.

How would Republicans react? They’d fly into high dudgeon. They’d condemn the cynical use of religion. They’d blast the nomination of a White House insider with no ostensible background in studying the constitution. They’d lament the triumph of cronyism and blind partisanship over merit and intellectualism. They’d thump their chests and affirm that Republicans, not Democrats, were the Meritocracy Party–as witness the High Court hullabaloo. And, on each count, they’d be convincing.

And you know it’s bad when the man whose name is synonymous with being a rejected Republican Supreme Court nominee, Robert Bork, has this to say in The Wall Street Journal:

With a single stroke–the nomination of Harriet Miers–the president has damaged the prospects for reform of a left-leaning and imperialistic Supreme Court, taken the heart out of a rising generation of constitutional scholars, and widened the fissures within the conservative movement. That’s not a bad day’s work–for liberals.

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Some moderate (i.e., lukewarm) conservatives admonish the rest of us to hold our fire until Ms. Miers’s performance at her hearing tells us more about her outlook on law, but any significant revelations are highly unlikely. She cannot be expected to endorse originalism; that would alienate the bloc of senators who think constitutional philosophy is about arriving at pleasing political results. What, then, can she say? Probably that she cannot discuss any issue likely to come before the court. Given the adventurousness of this court, that’s just about every issue imaginable. What we can expect in all probability is platitudes about not “legislating from the bench.” The Senate is asked, then, to confirm a nominee with no visible judicial philosophy who lacks the basic skills of persuasive argument and clear writing.