Dispatches from the Creation Wars

Balkin on Miers

Jack Balkin has a long and thorough essay on how Democrats should respond to the Miers nomination and he says much the same thing I’ve been saying. As he notes, the Democrats are currently in popcorn mode – sitting back, munching their popcorn and enjoying watching the Republicans yell at each other and call each other names. But at some point, if the administration does not withdraw her nomination, they’re going to have to decide whether to vote for her or against her. If their only concern is the balance on the court and the outcome of cases, they’re better off voting for Miers because she really is the most likely to be an O’Connor type on the court of all the potential nominees. But if they care about the quality of people on the court, as I think they should, Balkin says they should vote against her:

I have left the most important reason for Democrats to oppose the Miers nomination until the last. It has little to do with strategic political considerations. Democrats, like all Americans, should want the Supreme Court to be staffed with the best possible candidates– candidates who have the legal skills and expertise to handle the issues that come before the nation’s highest Court and who have the experience, judgment and gravitas to make good decisions when the law is unclear or unsettled. The Court needs and deserves judges who are both excellent lawyers and judicial statesmen. As of now, Harriet Miers, for all of her admirable qualities, does not seem to be that sort of person. Perhaps she will convince us otherwise in the upcoming hearings, but if she does not, the Democrats should oppose her. It is true that Bush may nominate someone even more conservative if Miers is not confirmed, but in one important sense this is beside the point. Democrats who care about the institution of the Court, and who care about the future of the Constitution, should want good people on the bench even if their views about the Constitution differ in important respects from their own. That is what it means to act in the public interest and for the public good: to safeguard and protect the vitality and the quality of the key institutions of American government– whether they be the Congress, the President, or the courts.

I agree completely. And I’m quite certain that if Miers is withdrawn, the replacement nominee will be more likely to be solidly conservative on the court. But I’d much rather see a Michael McConnell on the court than a mediocrity.


  1. #1 whackamole
    October 25, 2005

    Dems always have the option of voting to confirm now and then voting to impeach later should they ever get back into power again. Republicans on the other hand, not so much, unless they suddenly discover a sense of integrity.

  2. #2 Ed Brayton
    October 25, 2005


    A vote to impeach a Supreme Court justice? That isn’t gonna happen.

  3. #3 whackamole
    October 25, 2005

    Well, there’s also the other factor that she’s 60 years old and won’t be around for too long. I’m sure she isn’t the height of cronyism and we could do a lot worse.

  4. #4 spyder
    October 25, 2005

    The questionaire scenario is telling. She should not be confirmed. She either filled it out herself and failed to have it checked and/or reviewed; or she directed someone to fill it out for her and didn’t check it herself or have it reviewed. In either case, she is unprepared and sloppy. Now Bushco won’t release any of her White House papers nor her tax returns. She works for us, the citizens right?

    I am laughing now at the spin that was put out about how Cheney didn’t want her nominated. He sure could use her on the SCOTUS given what was revealed today about his involvement in leaking a CIA operative’s name.

  5. #5 hemlok
    October 26, 2005

    Hmmm, let me suggest another scenario. She is confirmed to the court and seated as a Supreme Court Justice. As the justices work their way through the initial caseload, she begins to generate work product–briefs, arguments, decisions, dissents. And the other justices find her work product painful, sadly laughable, not even close to their standards. Breyer, Souter, Ginsburg, Kennedy, Roberts–These are bright, sharp, demanding people. And their disappointment in her abilities will be a problem. For a couple of years they will work with her, trying to get her to a level where she can actually function on the court. Eventually, they will sit down with her and convince her to step down as she just doesn’t have the skill set, the experience or the intelectual wherewithal to operate on that level. And by that time, a Democrat is in the white house and it’s an opening for a progressive justice!!


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