Wednesday, October 05, 2005

Damage Control Advice for the White House

Harriet Miers is unqualified. She has no experience in her record to indicate that she has thought about, much less grappled with, the important constitutional issues of the day. I don’t care where she went to law school, and I don't care that she has not been a judge. I care deeply that she has no appropriate experience for the position.

Appropriate experience can come from

(1) judicial experience,
(2) governmental service in the DOJ (e.g., Rehnquist, White, Jackson), an important agency (Thomas, Douglas), Congress (Black) or even in a Congressional staff position (Breyer),
(3) academic work in Constitutional Law or related fields (Scalia, Frankfurter), or
(4) significant Supreme Court litigation experience (Roberts, T. Marshall).

Many qualified candidates have more than one of the above experiences.

Miers has none of them.

Can she suddenly become a legal theorist of the highest order? Will she grasp the significance of the Court and its unique role in our governmment? Not likely. All we are getting is the assurance that she will be a legislator, in the model of the justices who continue to reshape the “living” constitution, BUT that she will vote the opposite way.

To the extent that a reliable vote is all we can get out of this fiasco and that a second nomination would be worse (Torture Memo Gonzales?), here is the damage control strategy the White House better adopt:

The Democrats have already said they accept Miers, so she needs to come out even before the hearings as a full-bore textualist/originalist. She needs to make Bork look like a quiche-eating liberal. Attack substantive due process; trash Griswold, Roe, and Lawrence; put a stake in the heart of the “living” constitution. The Democrats can’t back away now without looking completely foolish, and the President has to shore up his base. Since she is a total blank slate and Bush can write whatever he wants on it, he better get writing fast and it better be awfully good.


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