Another three months, another update. I haven't had time to follow the latest supreme court nomination process all that closely, but I have some thoughts to get down nonetheless.

I posted the last commentary on Harriet Miers about an hour after the news came out. Since then, I have been able to appreciate a few different perspectives on the nomination. I have to admit, what made me most curious to consider some of the pro arguments was the fact that Democratic Senate majority leader Harry Reid along with Senator Leahy and some other Democrats openly and admittedly espouse optimism about this nominee, and admit they were intimately involved in the deliberative process with the President that ended up selecting her. Here is their stated rationale: We thought it would be good to have someone who was not another appeals court judge on the bench, who could bring a more pragmatic and real-life perspective to the overly groomed and often cloistered group elites that currently inhabits it. I found this curious.

For one, and I say this completely non-judgementally, I had never thought of this concept before. Obviously, from the beginning, because of the very nature of our democracy, regular-man roots often embodied in a populist philosophy was considered an asset in elected officials, particularly those in prominent positions such as the elected posts of the executive branch. This is because a sense of familiarity and sympathy can be a huge factor in gaining votes. However, it never occured to me that this could be an asset in the judicial branch. One, judges aren't elected, so the previous analysis doesn't apply. Two, judges don't don't represent or lead the people. They are specialists in a sense, and their expertise is to interpret the law. Considering factors such as background only seems to increase the legislative function of the judiciary, a trend the Republicans in particular professes they wish to reverse. That's like saying "we want someone with everyday experience on the Board of Governers at the Fed." She might know nothing about macroeconomics, but at least she knows what it's like to pay prime rate for a mortgage.

The second thing I found interesting is that Miers doesn't particularly possess the characteristics they are referring to. The narrative is all messed up. She's been touted as a private sector nominee. Yet she was Bush's personal attorney (that's real everyday experience), was appointed to the lottery commission by Bush, and subsequently to the city council. And of course, she comes fresh out of five years working at the most typical of private sector jobs - the White House personal attorney! First, she was chief secretary, and now she is White House Counsel. The extent of her legitimate private sector experience is working with a metropolitan law firm, which probably puts her well below the experience level of any other nominee in history.

The obvious conclusion is: 2 counts bullshit equals hidden agenda. It's possible that Democrats have finally been able to engage a level of political subterfuge superior to anything the Republicans were able to recognize. A resignation is obviously bad for Bush; a withdrawal is even worse. It would take some fairly astute political anticipation to predict that Miers would simultaneously worry harcore social conservatives because of her lack of a clear record supporting the causes they want, and intellectual conservatives that tend to inhabit the thinktanks because of her obviously nonexistent qualification.There is another possibility. It is possible that some Democrats honestly thought Miers was the best possible pick, to which I would respond, what is their problem?

The mix of opinions on Miers is very strange. On the one hand, she's an easy objection to people who have either the legitimate concern or pretext to care about level of qualifications. Personally, I couldn't care less that she went to school in Texas, in contrast to the objections made by some. What concerns me is that throughout her considerably active career, she has never done anything even remotely remarkable or groundbreaking. All of the memos and documents being released from her public and private work show a diligent but completely pedestrian worker. More disturbing, her writen legal opinions and advice, dating back for more than 10 years, oftentimes do little more than summarize the original legal question, using a few legalistic words like "prudent" and "just" in the process. Intellectual conservatives in particular had hoped for an earth-shattering thinker and communictor, in the mold of Scalia, to further entrench the legitimacy and convincingness of the conservative legal and social agenda for generations to come. There's also the small issue that she doesn't have any expertise in constitutional law. Bush staffers argue that she has learned while in the White House. Well that's great. I'm sure she has gotten a really complete and balanced education on constitutional law exclusively while working in the Bush White House! That's like learning how to Not Torture People at Guantanamo.

This is what makes the Supreme Court the Supreme Court, and not some state court; their final domain is the Constitution, not just statute. Not to mention, everyone agrees it takes several years for even the most seasoned legal minds to adjust to the job once seated. Even Stephen Breyer has admitted it took him many years to fully grasp the workings of the job, and he's known on the court as "the professor."

Then you have the social conservatives who are disappointed that Bush didn't have the balls to make a flagrantly political appointment of an avowed conservative political activist judge. Arguably, this is what Bush could have done if his political coalition was stronger and not undermined by the war in Iraq, the willingness of the mainstream to recognize his inability to manage the war - not to mention the pending criminal investigations of his two second in commands. Since the two ELECTORAL pillars of the current Republican party are reform social conservatives and intellectual neoconservatives, we can see why mainstream Republicans (or anyone not from Mars, for that matter) are opposed to the nomination.

I personally am hoping that she is not withdrawn, so that the process can proceed to the confirmation hearing. From my perspective, no matter what happens this event might be entertaining. Though it's a reasonable assumption that Senators will accept a fair degree of line-drawing when it comes to personal views and/or views on specific issues, however not as permissively as during the Roberts hearing, they will surely be much more demanding when it comes to demonstrating her judicial philosophy and understanding. Contrasting with Roberts, who has a long record of service both publicly and privately, Miers is not even responding adequately to questions seeking to get a preliminary assessment of her legal perspectives. Charles Schumer noted after his meeting that she was unaware of some important legal precedents. Meanwhile, Patrick Leahy (her "special" advocate - not even sure what that means) and chairman Arlen Specter, who is probably the most judicious and moderate person in the senate), unequivocally stated that Miers' responses to the PRELIMINARY questionnaire were "from inadequate to insulting." So if she is able to articulate her legal philosophy during the senate confirmation hearing, that will be interesting because I don't have the faintest idea what it is. And if she doesn't articulate any legal philosophy during the hearing...well, that will be a spectacle at the very least, although very pathetic.

Honestly, I doubt it will get that far. Of course, this brings up the interesting question of what was the reason, be it rationale or more manipulative purpose, for the nomination to begin with. I'll put down my thoughts on that when I have some more time.

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