Why Judicial Qualifications Matter:
There is a nice column by Dennis Coyle on the Miers nomination entitled Dubya Closes a Door? What Harriet Miers may mean for constitutional law. While the whole column is well worth reading, one passage in particular succinctly explains why it is ever so realistic to demand a certain kind of qualifications for a Supreme Court justice:
Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.He concludes on a note of semi-dispair:
But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core — an elite — on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite.
The nomination of Harriet Miers is another chapter in the lost promise of the Reagan revolution. From the heady days of the 1980s, there have been so many missteps, perhaps including the selection of the current president's father as the custodian of the Reagan revolution. The judicial legacy of the Bushes has been raised hopes and dashed expectations: The father left us Thomas, but also Souter; the son brings Roberts, but now Miers. This may be Bush's last opportunity to make an imprint on the Supreme Court, unless health forces Justice Stevens off the bench. The next resignation may well be that of Justice Scalia, fleeing in frustration.This summarizes better than most that has been penned on the Miers nomination why so many of those—perhaps all—who have devoted their time and energy to this matter are reacting to this decision as they have.
The Republican hold on the presidency is razor thin, control of the Senate uncertain. There could well come a day, possibly sooner rather than later, when a Democratic president places a nominee before a Democratic Senate, and there will be little talk of keeping a balance on the Court. The Court will resume its leftward march, occasionally staggering back to the right. Conservatives slowed, but did not reverse, this trend.
The moment has passed; unless this nomination is derailed by the oddest of bedfellows, it would seem that this is, as Jim Morrison intoned, the end.