The next justice

This morning, President Bush announced Harriet Miers to be his nominee to the Supremet Court. This choice is a puzzling one, and has provoked reactions on the right ranging from praise to head-scratching to yelps and groans.

Miers is currently White House Counsel, and has not served on the bench. That doesn't worry me. What does worry me is that it cannot possibly be argued that Miers is the most qualified candidate. (What about Luttig and McConnell?)

This is the first time a woman is retiring from the Supreme Court, and it troubles me that Bush seems to be setting a precedent, that a woman must be replaced by a woman. Again, why not appoint the best candidate possible? If you must appoint a woman, why not Jones or Brown?

In her remarks this morning, Miers deliberately attempt to assuage concerns on the rights. She talked of strictly interpreting the Constitution, and she talked about being true to the Founders. I do count this as an encouraging sign, let it be said.

Here are some of David Frum's reactions:

"You can always count on George W. Bush to get the big ones right." That line or something like it has consoled conservatives during their periodic bursts of unhappiness with this administration. And by and large it has been true. Oh, there were major mistakes, no doubt about that - prescription drugs, steel quotas, and so on - but it was always possible to rationalize those as forced on the president by grim necessity or some prior campaign promise.

The Miers nomination, though, is an unforced error. Unlike the Roberts' nomination, which confirmed the previous balance on the court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades - two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession.
...
I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.

There have just been too many instances of seeming conservatives being sent to the high court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president, especially one backed by a 55-seat Senate majority, to take a hazard on anything other than a known quantity.

Power Line also said it well:

But the bottom line is that he had a number of great candidates to choose from, and instead of picking one of them--Luttig, McConnell, Brown, or a number of others--he nominated someone whose only obvious qualification is her relationship with him.

So, we conservatives have to wait and see if another seat on the Court comes open in Bush's administration. Perhaps Stevens is the next most likely candidate, but these judges seem to linger on well past the age of clarity, till their aides have to help them with their briefs, and I'm not talking about legal papers.

Here's Mark Levin's reaction:

The president said he would pick a candidate like Antonin Scalia or Clarence Thomas, and he did not. We all know of outstanding individuals who fit that bill, and they were once again passed over. Even David Souter had a more compelling resume that Miers.

The president and his advisors missed a truly historic opportunity to communicate with the American people about their government, the role of all three branches of the federal system, and the proper function of the judiciary. More importantly, they have failed to help the nation return to the equipoise of our constitutional system. And the current justices whose arrogance knows no bounds will be emboldened by this selection. They will see it as affirmation of their "extra-constitutionalism." The president flinched. Some have compared have compared profligate spending to Franklin Roosevelt's New Deal. But no one will accuse him of FDR's boldness when it comes to the Supreme Court.

If people are disappointed, they have every reason to be.

It is a sign of how out of control the Judiciary is, that we need to be so worried about this. The Judiciary is not meant to have such power, we are meant to have our voices heard through our elected legislatures. We are not meant to have our voices ignored by unaccountable judges.

But given what is at stake, why not appoint someone whose philosophy is known? Conservatives have not had great luck with stealth candidates. (Souter Souter Souter) Instead of giving us hope, Bush has ensured that hope is all conservatives can do.

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Michelle Malkin has a good roundup of reactions.
Betsy Newmark is, at minimum, disappointed.
Hugh Hewitt calls it a B+ pick.
Captain Ed sees a political ploy.
JunkYardBlog is disappointed.
Professor Bainbridge is appalled.
La Shawn Barber has a wide range of reactions.
Color Bogus Gold disappointed.
Anti-Strib sees a huge battle coming.