Miers Autopsy

Is that David Frum in that helmet?

I know this is a dead horse, but I think these are important discussions for us to have. We need to understand how we will react differently (if at all) to the next nomination or a nomination ten years from now for that matter.

Having followed the matter fairly closely I can say that the horse is dead because Conservatives shot her.

Deferring to the President is not a party thing, it's a constitutional thing. The constitution indicates that the elected President shall choose the nominee with the advice and consent of the Senate. When we stray from this rule there are consequences. When President Clinton nominated Ginsberg everyone knew she was a staunch liberal but we let her pass anyway. Why? Because she was the President's choice.

For years conservatives have been trying to remove politics from the judicial confirmation process. But now we've lost that high ground as well. The minute David Frum, Mona Charen and others raises $300,000 of anonymous money to oppose Miers we sank down with the liberals who took down Robert Bork. "Only this time we had Bork himself to "bork" Miers."

Now we come to the second point: the reason we didn't know Miers' judicial philosophy is that she never appeared before the Senate. While I'd like to think that conservatives opposed her because of her perceived judicial philosophy, the arguments made against her were almost all ideological.

The straw that broke the camel's back (for many Miers opponents) seems to be a speech she gave 12 years ago. Can you imagine if someone tried to use something pithy that you said a long time ago and attribute that as an indication of your current philosophy? Can you imagine someone inferring how you might rule based on conversations that people have had with you in the past? Oh wait, we don't have to imagine, that was the Bork hearings.

Don't get me wrong, conservatives are perfectly in their right to oppose or support any nominee. But the way we do it is truly important. If we had let the Senate carry out their job this thing might have worked itself out. And we would have Senate democrats pinned on any "extraordinary circumstances".

Instead, our hands are muddied, the base is picking itself up, the Democrat's arsenal is full, and they have every excuse to pull the "e.c." trigger without explanation. Let's not fool ourselves... there could be serious ramifications for downing Miers. And not just distant but near future ramifications. As Hugh points out the first milestone is late next month when the Supreme Court hears a case about parental notification on abortion. Miers will not be on the bench but O'Connor will.

Fortunately, many chose to sit on the sidelines. I'm not sure how I ended up (I had a bit of fun with it all along the way. See here and here) We can still take the moral high ground on many of these points. But just consider... what would you do if President Bush nominated Alberto Gonzales tomorrow? Would you abstain then as well? If not, why would you support or oppose him? How would support or oppose him?

George Gilder made an interesting point about companies saturating the political process with money. "Why do they do it?" George asked and then answered: "Because government is all over them! If government left them alone they would spend much less time and money trying to influence government." The more we can move the political process away from the nomination process the more successful we will be at regaining constitutional ground.

... reading back over what I wrote it comes out a little harsh. This is just my frustration at conservatives going off on Miers because she's "never written an Op/Ed" or "only practiced corporate law" or is a hypocrite for heading up the Texas ABA or you fill in the blank.

Read Hugh today in the NY Times, he says it best.