did democrats miss out with harriet miers?

Fabio

Did Democrats pass up a golden opportunity?

The recent wave of Supreme Court decisions showed that the addition of Alito and Roberts produces a conistent 5-4 conservative majority. I don’t have an opinion on any case since I’m not a lawyer, but I do wonder if the Senate Democrats totally missed out with Harriet Miers. Think about it: you know a sitting GOP president will nominate a conservative of some kind, why not support the person who will most likely move in your direction? Instead of supporting Miers, Democrats allowed conservative Republicans to tank the Miers nomination, paving the way for two nominees who turned out to be much more conservative.

The usual non-conservative line against Miers is something like this: While not a dunce by any stretch, she by no means had the sterling credentials one would expect of a Supreme Court justice. But that sort of argument is pretty weak when you think about the bigger picture: If you are a Democrat, is it better to have a conservative of perfect credentials who will shift the court to the right with nearly 100% probability? Or is it better to have a less than stellar, but competent, conservative who shows real potential for pushing the court leftward? In other words, is it worth jeopardizing the decisions of the Warren and Burger courts just so you can vote for somebody with an Ivy League degree? If you really care about some of those decisions, the answer is a resounding no. Politically, I think that if Democrats and a few moderate Republicans had supported Bush, they probably could have pushed her through.

You might doubt that Miers had a reasonable chance of maintaining O’Connor’s moderating role in the court. But Miers had the background typical of a “drifter.” You’ll notice the leftward drifting conservative justices – O’Connor, Souter, Stevens, & Kennedy (sometimes) – all had a mixture of experience at the state and national levels, with occasional academic work. My guess is that working in varied environments – like state courts (Souter, O’Connor), state legislatures (O’Connor), governor’s offices (Souter) and unconventional situations (Kennedy worked in various millitary venues; Stevens did a lot of work for the Illinois state government) – provided these folks with a richer sense of what the law is about.

In contrast, the hard leaning conservatives – Scalia, Thomas, Rhenquist, Alito, Roberts – seem to have fairly similar careers. After law school , there is often a stint in private practice and clerking, followed by a career flipping back and forth between academia and the federal government, either as an appeals judge, or as a legislative or executive assistant. This also applies to the reliably liberal folks: Ginsburg was an academic, before Carter appointed her as an appeals judge; Breyer’s was an academic, and then appeals judge.

So my guess is this: A career dedicated primarily to judging, federal work, and academia probably indicates strong ideological commitment, either liberal or conservative. You have to be extraordinarily smart and sure of your political ideas to manage a long career either teaching the law or setting policy in a federal court or agency. Definitely not a sign of someone who is exploring different ways of seeing things. In contrast, substantial time spent in private practice, state politics and other venues probably indicates more flexibility because you actually have to live with the decisions made by federal agencies and the courts. You also deal with people who are not students, plaintiffs/defendants, or as objects of regulation. Probably gives you a better sense of when to be tough and when to be flexible.   

If you believe my theory, then the Congressional Democrats completely screwed up with Harriet Miers. While not having golden academic or judicial credentials, she did actually have a solid reputation for being a smart and hardworking attorney in Texas, and showed many signs of being a political centrist. In contrast, both Alito and Roberts had the career typical of people who stick to their guns. The best that Democrats could say about either of them was that Roberts had once helped out in a  gay rights case. True, but it was in the context of doing pro bono work for his firm; there is no larger context of him helping out on this kind of issue.  

Basically, Bush gave the Democrat’s a soft ball pitch. It would have been very easy to make some noise about bipartisanship, supporting different kinds of people on the court, and then tried to push the nomination through. There would have been no political fallout from supporting Miers. But, if I remember correctly, there was silence from the Democrats. If the new court decides to trash your favorite Burger or Warren court decision, you’ll know who to blame.