The Sleeping Giant Stirs

The blog's been quiet for a few weeks, but honestly there hasn't been anything important to write about since Kate Winslet's birthday. Seriously, I've been trying to keep busy with productive work and enjoy the onset of Fall, my favorite time of the year. Not only is the decline in temperature very congenial, but I love Halloween. I guess that surprises nobody.

Anyway, I've got months-old posts about horror movies that I may get around to finishing and posting soon, but I guess the thing that's been tugging at my attention the most recently is the Harriet Miers nomination. I was skeptical of Tom Goldstein's prediction, made less than an hour after the nomination was announced, that the Senate would reject Miers, but it's starting to look like Goldstein might turn out to be wrong only because the Senate never gets the chance to vote on her.

The blogosphere has been highly active on the Miers nomination, but after the initial rush of the pajamahadeen onto the field, several bloggers have turned recently to their favorite topic, discussing the extent of their own influence. It all started, as usual, with something written by a member of the MSM, Danny Glover (no not that one) of the National Journal. Responses appeared on Concurring Opinions had the predictable effect of exercising other blogs like Debate Link, PrawfsBlawg and a million other pages you can find in the trackbacks to those posts.

I don't blog to be influential (thankfully, because I'd be an abysmal failure) but because I enjoy it. That's why I go through phases where I blog a lot and others where the page is dormant for weeks (like just now). Sometimes, as I put it recently, I'm just not feeling the blog. Another factor, I have to admit, is the paralyzing responsibility of being a powerful blogger, something I've remarked upon before.

I find the thesis that bloggers have become an influential independent force in American politics hard to believe. Sure, there are success stories you can tell about campaigns begun by bloggers, but bloggers matter, it seems, in much the same way as oral argument matters in Supreme Court decision-making: it matters to the extent that other actors who really do matter make use of it. That means bloggers will seem really successful when something they take up coincides with a cause or story that already has momentum or influential allies.

Friends and colleagues have asked me what I think about the Miers nomination, and while I've been trying to keep up with the news, I haven't had many concrete thoughts about it. I guess it depends on what the question is. So let's look at what some of the questions could be.

"Should Miers be a Supreme Court justice?"

Honestly, I don't know. Her qualifications are scant, but lack of experience dealing with constitutional and statutory questions in a practical (judicial) or theoretical (academic) context doesn't mean she couldn't possibly be a decent or even good justice. Sure, plenty of other good to great justices have had little or no appellate judicial experience, but they often had more experience with heady legal questions than Miers has had. I don't consider a lengthy career as a firm lawyer and managing partner (a job usually reserved for partners who are poor earners) or bar association leadership (also work for those whose practice isn't as valuable) good credentials, unless she were being nominated to run something. That said, I'd just as soon wait for the hearings, myself.

"Why did Bush nominate Miers?"

I haven't changed my mind since the day of her nomination. I think Bush wanted to reward a loyal advisor and friend and move someone into the Supreme Court who will look favorably (he thinks) on presidential power. I also think he sees her inscrutability to others as a benefit, rather than a drawback.

"OK, so why is Bush having so much trouble with this nomination?"

Primarily because he's frustrated the closely-felt expectations of loyal supporters. With so little record to go on and no reliable source of information about Miers' "real" stand on issues that they care about, the president's socially conservative base who want a reliable, known quantity in O'Connor's place have had to go on Bush's "trust me," and they don't trust him. I don't believe this could possibly have come out of nowhere. These conservatives have been gritting their teeth for four years as it appeared to them that their interests took a back seat to those of economic (but not necessarily fiscal) conservatives, Weekly Standard-style "national greatness" conservatives, neoconservative foreign policy advocates, and flat-out opportunists. Wisely or not, they sat on their hands with the expectation that they'd be paid off clearly and in full with Bush's SCOTUS appointments. Now they feel as if they've been betrayed.

"Why by Miers and not Roberts?"

I don't think the enthusiasm for Roberts in some conservative circles was all that high, but neither was opposition. The temptation to blame sexism is there, but I really think there is another reason. The conservatives most upset about the Miers nomination (and they are not just pro-life social conservatives) wanted a known quantity as a nominee, but more than just any old anti-Roe vote. Seems to me they wanted a dedicated and articulate movement conservative, someone who has taken principled stands in the past on constitutional issues that matter, someone who takes their ideals and issues as seriously and personally as they do. That, I take it, is what conservatives thought they were buying when they paid for their justices in the mold of Thomas and Scalia.

Roberts perhaps isn't the ideal candidate from this point of view, but he's been at or near the center of the action for most of his career, including his much-demurred Federalist Society association. You could argue he hasn't taken any principled stands on important constitutional issues, but only if you buy the "Master Thespian" answer Roberts and his supporters gave in regard to his OLC memos ("I was merely... ACTING (as an advocate for the president)!" I don't. Even if there is reason to believe that Miers holds reliably conservative policy preferences, she doesn't seem like a dedicated, active, and effective advocate for those preferences, or likely to become one. Instead, she could at best be called a dedicated, active, and effective advocate for George W. Bush.

"It sounds like you're against the Miers nomination."

Is that a question?

"All right, if you insist... if this is so, why do you think Miers' suitability for the Court is still an open question?"

In part for purely strategic reasons. One, I'd like for Bush to follow through with the nomination, just in case she gets rejected. I'd prefer her rejection by the Senate to her withdrawal by the president. Since it's looking increasingly likely she'll be rejected, that's a good enough bet for me to take. Two, it's always possible that she won't be that bad if she becomes a justice. Lots of justices have been OK despite having mediocre qualifications and lots of highly regarded, accomplished legal minds have been lousy or disappointing justices. Unlike George Will, I don't think the selection of Miers is obviously an abuse of the president's discretion in this area, but I don't have his commitment to wanting pompous bowtie wearing conservative legal theorists on the Court. Three, it might even be good, from my point of view, in the long run for Bush to waste a nomination on a lackluster conservative standard bearer instead of appointing someone who might actually accomplish things in the Court. Of course, Miers might turn out to be a skilled coalition builder and legal deal broker in the mold of William Brennan, but her answers to the Judiciary Committee don't suggest that she will. In truth, I really don't think the information revealed about Miers is sufficient to judge her suitability for the Court, just to suggest (against) it.

"You seem to have many concrete thoughts about the Miers nomination. Why, then, are you so cagey about it?"

Hey, back off a bit. I've been trying to answer your stupid questions honestly and in full. How am I being cagey?

"You sound like you're trying to keep an open mind about this when all you're really open to is supporting her if she's a moderate or an incompetent conservative, but if she's really conservative, the more qualified she is the more you would oppose her."

That's not really true. If she's not competent to be a justice, she doesn't deserve to be on the Court regardless of her ideology. But that's not a question either, so if you don't have anything else to ask I'm going to end this post. None of this matters anyway...

"I want you to go on the record with a prediction: Will Harriet Miers be confirmed as an associate justice of the Supreme Court?"

No, she won't. She might be able to convince some people that she can be a capable jurist and others that she'll be reliably conservative, but she can't go back in time and change her career and past commitments, and that's what this is really about. Happy now?

"Just remember you wrote this when she's getting sworn in."