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by Tara Ross    Fri, Oct 14, 2005, 11:36 pm
Tara Ross
I suspect that many readers of this blog are not self-identified conservatives. Accordingly, perhaps you don’t think it matters too much why conservatives are divided over Harriet Miers.  Or maybe your primary response is great joy, rejoicing, and glee as you watch Republicans implode. I can’t say that I blame you. Perhaps I would do the same in your shoes. In reality, though, the reasons behind the conservative divide are vitally important, not merely to conservatives and the Republican Party, but to anyone who cares about the composition of our Supreme Court.

Let me see if I can explain why in a few short paragraphs. For ease of reference, let’s call the two main conservative camps “Side A” and “Side B.”

The arguments of Side A go something like this: We believe the President. The President says that he knows Miers’ heart, and he has promised us that she will be a reliable conservative vote on the Court. Moreover, Miers is an evangelical Christian. Her faith should weigh in her favor.

By contrast, Side B feels angry and betrayed. Its members don’t know whether to believe the President’s assertions about Miers, but they are nevertheless unimpressed with his arguments that she will vote “the right way.” Instead, Side B feels that the President should have appointed an experienced jurist with a proven track record as a fair, non-political arbiter of the law.

The collision between the arguments of Side A and Side B comes down to a simple question. Do Republicans really believe what they preach about the judiciary being the non-political branch, or does Republican diligence about avoiding a politicized judiciary surface only when the candidate in question is perceived as left-leaning?

Consider: Side A rests much of its support on the President’s promise that Miers will vote in a reliably conservative manner. Set aside the speculation regarding whether this promise can or cannot be trusted. What does such a promise mean, under the circumstances? Upon what information does it rest? Miers is a 60 year old woman with no significant constitutional law experience to speak of. Her career has not required significant periods of time wrestling with difficult constitutional questions and arriving at a well-established judicial philosophy. How can Miers hope to give the President more than superficial assurances about what her judicial philosophy will be in practice? The President’s confidence in Miers either rests upon insufficient information or it rests more upon her personal views than upon knowledge of her judicial philosophy.

The former makes her nomination an irresponsible one. The latter is exactly what conservatives have claimed to be combating in recent years.  Side B sees this. Side A does not.

Side A also seems to take comfort in Miers’ status as an evangelical Christian. This position is silly on many levels.  First, no one can claim to know the inner workings of another’s heart. Isn’t it a bit risky to rely so heavily upon spiritual qualifications? Second, a person can be a good, sincere Christian and a really lousy Supreme Court Justice simultaneously. Did not Jimmy Carter accomplish an analogous feat in the Oval Office? Last, we should remember that affirmative action based upon religious preference is no more justifiable than affirmative action based upon gender, skin color, or ethnicity.

I have every confidence that Harriet Miers is a wonderful woman. I know that my position against her nomination may be unpopular in Dallas, where locals have an instinctive reaction to root for the home city girl. The country will be best served, however, if we quell this instinct. Miers is an accomplished woman, and she is doubtless qualified for many preeminent positions. She is not, however, qualified to sit on the Supreme Court.

The President erred terribly by making a nomination based upon political and personal considerations rather than legal and judicial ones. Side A should pause and consider the long-term ramifications of throwing their support behind this choice. After all, what’s good for this Republican goose will be good for a Democratic gander in future.

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