The Discerning Texan

By any conceivable measure, it has not been a good month for the American right. Two hurricanes, worsened by skewed media coverage, a flawed indictment of a probably innocent Majority Leader: all of these have contributed to the perception of the American right under siege. But one event seemed to pass under the radar: the swift and easy confirmation of John Roberts as Chief Justice, achieved by splitting the Democratic caucus in two. Who was in charge of the selection committee for this man? Arguably it was White House Counsel Harriet Miers.

It has saddened me to see the reactionary right become so unglued over the nomination of Ms. Miers to replace Justice O'Connor. It almost seems that brinkmanship and testing the "nuclear option" has become a cause celebre--a way for the right to fight back against all of the injustice it had to endure this month from a frothing at the mouth media and an endless parade of Pelosis, Clintons, Jacksons, Sharptons, Nagins, and Sheehans. I can relate to this desire to "strike back" and to chalk up an "in your face" win against the left. But I am not so sure that the center would have held for a Luttig or another "red meat" conservative activist. There is a greater than zero chance in that scenario that McCain, Snowe, Specter, or other "Gang of 14" members might have made a Republican "nuclear option" attempt to override a filibuster explode in the President's (and the right's) collective faces.

Instead, we have yet another candidate who seemingly would be immune to a Democrat-led filibuster. The problem for the right, when it really comes down to it, is that they do not know if they can trust the President's judgment on this one. The President has been stating for anyone who would listen for three days now that he would fulfill his campaign promise to not nominate a candidate who would "legislate from the bench". I personally believe he has done just that. Who would better know the criteria the President was searching for than Miers, who spearheaded the vetting of all the Judicial candidates for the White House? And who would be a better judge of Ms. Miers' core beliefs about the constitution and its meaning better than someone who has worked by her side every day?

I hate to go out on a limb here, because I am staunchly in favor of strict Constitutionalist justices on the court: but I think that Ms. Miers will prove to be just that. In short, I trust this President, like I did not trust his predecessor or even his father. I think he is a straight-shooter, and when he says Harriet Miers will not legislate from the bench, I believe him.

Despite the blood lust of the right, is it not better, in this time of swirling controversy fanned by the left, to get a constitutionalist that is confirmable? It is easy to understand the reluctance of the right to embrace Ms. Miers because she does not have a staunchly conservative judicial record. But, assuming she does believe in the sanctity of the Constitution, would it be better to further inflame an already out of control media over a candidate who almost certainly would result in a filibuster, and thus would put enormous pressure on "weak" Republicans like McCain or Specter to hold serve in a "nuclear option"? Or would it be preferable to let the firestorm die down for now; would it be better to insert someone that will uphold conservative values, but who (like Roberts) is probably filibuster-proof, and thus would not place the middle in danger of coming unglued, resulting in possibly another embarrassment for the White House and a defeat for the right. I would argue that it is more important to get a judicial conservative confirmed. And I believe that is exactly what the President's course will do.

Thomas Lifson presented another argument today for patience with Ms. Miers, that being that she might bring other skills to the table that could be equally important to the Court:

So our hopes for further brilliant bloodying of the left are at best to be held in abeyance. At worst, some fear that charges of cronyism may have merit, that we may be embarrassed by her time spent at the hearing room witness table. In other words, too often presumed by our neighbors to be intellectually and morally deficient, proud conservatives, the type who write elegant essays, are worried that their President may have sold them out with a figure awaiting ridicule by those very neighbors.

I expect John Roberts to be a superb Chief Justice, in no small part based on his intellectual and verbal skill set. Those are skills which mean a great deal to me, too. But they are far from the only valuable skills for use in the deliberations among nine prideful individuals. Those who build their careers on that same skill set all too often fail to appreciate other valuable skills, including in particular the socially-based ability to get people to work together on shared goals. If brilliance were all that were required to influence the Court in a conservative direction, then Antonin Scalia would have sufficed to prevent outrages like the Kelo decision.

That appreciation for the importance of diverse skills is why I am eager to allow Harriet Miers the opportunity to demonstrate her merits to the Senate and the rest of us, too. The Supreme Court needs a majority-builder. Justices Scalia, Thomas, and Chief Justice Roberts will provide as much brilliance as ever could be required. Justice Miers might add a slightly different contribution, one that is equally valuable, if less showy and satisfying to the blood lust of battered intellectual conservatives.

I could not agree more--I say we give the President and Harriet Miers the benefit of the doubt, for now anyway. If the hearings show her to be incapable of handling the pressure, then perhaps my tune will change. But somehow I think the President knows who this person really is and what she believes, and that all the conservatives that are now vocally gnashing their teeth will one day look back and see this nomination as a turning point leading to the reformation of a now out-of-control judiciary.

And after all, as was demonstrated by the Gipper himself, if you can win the war without firing a shot, isn't that better than getting bloody?