Not sure what to make, as yet, of the Myers nomination. She is certainly not the most brilliant or distinguished jurist out there; then again, neither was Sandra Day O’Connor when she was nominated to the Supreme Court. Given all the reports that her primary qualification seems to be an intense personal loyalty to George W. Bush, the cloud of cronyism that hangs over this nomination makes for a pretty lousy weather forecast. (See Randy Barnett’s Wall Street Journal op-ed on the subject.) Over at Mark Kleiman’s blog, Steven Teles writes that Miers, a Texas-style “business conservative” cum evangelical Christian with a marked deference to the executive branch, will be especially bad for libertarians — on everything from gay rights and abortion to affrimative action, takings and civil liberties (gun owners’ rights being the sole exception). The folks at the right-leaning libertarian Volokh Conspiracy, on the other hand, seem to have mixed feelings.
The hysterical reaction from the religious right — see Instapundit and Andrew Sullivan for a roundup — is rather entertaining, and I have to confess to a certain amount of Schadenfreude. What I find particularly amusing is the cries of, “He used us! we got him elected and he doesn’t really care about our issues!” — mainly because we heard the same wailing and gnashing of teeth during the Reagan presidency and under Bush the Elder. What makes them always think that this time, it’s going to be different? And what made them think W. was a man of principle? No less striking is the fact that some on the right have openly voiced their yearning for a nomination that would have given us a culture war. Do they really think it’s a war they can win? I’m with Kevin Drum on this one:
Yes, Miers is a Bush crony, and that’s surely part of the story, but the bigger point is that Bush and Rove are practical politicians who know perfectly well that the kind of candidate the activist base likes is wildly unpopular with the public, because the ultraconservative agenda itself is wildly unpopular with the public.
Ann Althouse also makes an interesting point:
Personally, I think Bush does not want to see Roe overturned. I think he’s a lot more pragmatic than the hard core pro-lifers who have vested their hopes in him. I think there are a few women very close to him … who talk about the importance of letting women govern the insides of their own bodies, and that there are some smart political strategists — including at least one genius — who see quite clearly the devastating harm that would befall the Republican Party if the Court overturned Roe.
In the absence of a paper trail, we don’t know very much about the nominee’s views. However, WorldNetDaily reports that Mysterious Miers is pro-gay rights and pro-women in combat (as White House counsel, she apparently green-lighted the Department of Defense’s assignment of women to units serving in combat zones).
Meanwhile, some liberals are fretting over the fact that Miers donated $150 to an anti-abortion group back in 1989 and worked to get the American Bar Association to change its pro-Roe v. Wade position in favor of a neutral stance (an effort that briefly succeeded in 1991 but was later reversed). Of course, that hardly proves she will vote to strike down Roe. Miers’s position on the ABA endorsement — that the bar association should not adopt a political stance rejected by many of its members, and should at the very least put the issue to a full referendum by its membership — makes sense to me.
I’m still troubled by the twin issues of cronyism and mediocrity, and by the strong possiblity that Miers will rubber-stamp executive power (which Republican National Committee chairman Ken Mehlman reportedly mentioned as a reason to support Miers, stressing “the need to confirm a justice who will not interfere with the administration’s management of the war on terrorism”; hat tip: Julian Sanchez at Hit & Run). But so far, color me cautiously optimistic.