An itchy trigger finger

Paul Mirengoff, contributor to Power Line, has an excellent bit of analysis up at the Weekly Standard, but one with a bit of an O. Henry twist.

Mirengoff runs down a series of clear, unassailable points:

They argue that Bush is in the best position to know what kind of Justice Miers will be, so that if he assures us that Miers is a judicial conservative, we have no reason to doubt his word.

This argument fails to instill great confidence. A president usually deals with his White Counsel at a very high level. It's not likely that Bush (a non-lawyer) and Miers have had in-depth discussions about constitutional law. Thus, while Bush might be in a position to know very generally that Miers is a conservative as opposed to a liberal or a centrist, he's not likely to know whether she has a solid conservative judicial philosophy of constitutional adjudication, much less what she thinks about specific constitutional issues. It's also disconcerting that Bush has defended Alberto Gonzales, Miers' predecessor as White House counsel, from conservative critics, apparently including him among those who "will strictly interpret the Constitution and not use the bench to legislate from"--essentially the same endorsement he now has given Miers. Given Gonzales's record, few conservatives regard him as a reliable vote over the long haul.

Yes, bravo. Have we forgotten Bush's coy "Will I nominate Gonzales or won't I?" games? Is there anyone among Miers' supporters who would have been equally happy with Gonzales?

And as for how well Bush knows Miers and what kind of Justice she would make, what are we to make of this exchange from an Oct 4 White House press conference?

THE PRESIDENT: In my interviews with any judge, I never ask their personal opinion on the subject of abortion.

Q In your friendship with her, you've never discussed abortion?

THE PRESIDENT: Not to my recollection have I ever sat down with her -- what I have done is understand the type of person she is and the type of judge she will be.

How sure are we of Bush's knowledge of what kind of Justice Miers would be?

Mirengoff continues:

In any case, conservatives justifiably feel disappointed that they should have to rely solely on the president's legal and psychological acumen as they try to become comfortable with his nominee. There were at least two dozen candidates, including women, African-Americans, and Hispanics, whose conservative bona fides would have been apparent to the naked eye. Bush's rejection of these candidates in favor of Miers feels like cronyism or political weakness.

Yes, why isn't Bush nominating someone like Luttig? Bush's conservative base would rally behind him like never before. Bush would act from a position of strength. As it is, this pick leaves him weak. The Democrats know Bush's conservative base is up in arms. What cards does Bush have in this hand?

Two questions control the confirmation issue: Is Miers qualified and should she be rejected on ideological grounds? At this juncture, neither question strikes me as very close. Miers has achieved just about everything a lawyer can accomplish--head of a substantial law firm, head of the state bar association, and top legal adviser to the president. She also has a background in local politics. Only by insisting that a Supreme Court nominee possess either judicial experience or a portfolio of scholarly writings can one pronounce Miers unqualified. But this has never been the standard, and it's not clear why (ideological considerations aside) Republicans should invent a new standard with which to deal a blow to a Republican president.

I'll differ with Mirengoff on this one. As I've said elsewhere in recent posts, with me it's not so much the person of Miers and her qualifications, it's the person we're not getting. Miers may very well have all these bullet points on her resume. But, what do the two dozen candidates Mirengoff acknowledges have on their resumes? Rather than creating a new standard, many conservatives are simply asking we hire the best candidate, not the boss's friend.

For the past four years, conservatives have argued that ideology does not constitute a proper basis for voting against a president's qualified nominees. We have deplored Democrats who voted against qualified mainstream conservatives. We would have become apoplectic had Sen. Arlen Specter not supported a conservative nominated by his party's president. On what principled basis, then, can conservatives now vote down a nominee who is either a moderate or, more likely, some sort of a conservative? Miers plainly is not "outside the mainstream."

I'll differ with Mirengoff here as well. I agree that conservatives do flirt with a double standard without realizing it, but in this case conservatives are not primarily concerned with Miers' political ideology. Conservatives are concerned with her judicial philosophy, and that was, is, and will remain a valid basis for questioning a nominee's qualifications.

Mirengoff does touch on this point, but it is at this point where Mirengoff cuts off his hair to buy a watch chain for supporters of the Miers pick. He writes:

But avoiding a political phraseology is not the same thing as avoiding politics. And the politics of the confirmation process tell us that a standard under which conservative senators vote against nominees in, say, the Sandra Day O'Connor mold, is a standard that might well lead non-conservative senators (that is to say a majority) to vote against the next Antonin Scalia.

In the case of Harriet Miers, though, we are not even talking about someone in the O'Connor mold--we are talking about someone who might be another O'Connor but is just as likely to vote with Scalia in the vast majority of big cases. In this situation, it seems imprudent to blow up the confirmation process---and possibly the Bush presidency and the Republican party--to block her nomination. Thus, conservative senators should be prepared, barring new and damning information, to vote in favor of Miers. The rest of us should be prepared to hold our breath until we start seeing what she writes.

It strikes me as incomprehensible that the best reason for withholding our fire and letting the confirmation of Miers go forward without any further condemnation is that we don't really know how Miers will vote, so let it go ahead anyway!?! This is the best we can do? Why do we have to settle for this? Why can we not ask for a candidate about whose judicial philosophy we are much more knowledgeable?

I am willing to be persuaded that I should support President Bush and his nominee, but it hard for me to hold my fire when this is the only argument I seem to be hearing.

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Michelle Malkin has a must-see post documenting shifting attitudes among conservatives. (Attitudes seem to be shifting towards where *ahem* I've been all along.)

Among those shifting views are John Fund and Polipundit.

JunkYardBlog calls the nomination a debacle.

Professor Bainbridge reminds us the correct analogy isn't Souter, it's O'Connor.

Strata-Sphere views this as an unnecessary fight.

Bogus Gold has had a series of clear, spot-on posts about the Miers nomination.