Oh, dear; where to begin? In a White House that values “loyalty” above all, in a world in which the line between loyalty and sycophancy is less than sharp, Ms. Miers’ “philosophy” remains entirely obscure, above all to President W regardless of the self-deception into which he has allowed himself to descend. That she implemented W’s preferences in the numerous judicial searches conducted by this White House is far less revealing than Sam seems to believe: In a While House populated with sycophantic careerists desperately seeking each day opportunities to plant wet kisses on W’s shoes (or somewhere), Miers is reported reliably to have displayed the greatest zeal of all, announcing to all within earshot that W is “the smartest man she ever met.” Well: That says something interesting either about Miers or about W or about all the other men she has ever met, however few that may be. But we cannot know which. The central fact is that no one—probably including Ms. Miers—knows her legal philosophy, in that there is no evidence that she has ever devoted the time and effort necessary to develop one that can be called coherent. Perhaps she has. But what is the evidence for that other than a testimonial from W, who—ironically like Saddam—hears largely what his staff believes that he wants to hear? More generally, there is good reason to distrust—profoundly—anyone who has succeeded fabulously in an environment in which objectivity does not appear on the list of attributes yielding upward mobility. That environment is the current White House, and that success is the shining achievement of Miers.
And so the assertion that she will prove as steadfast as Roberts over the long run rests on a series of assumptions far less than awe-inspiring. It is at least equally plausible that, just as she has bent to the prevailing winds in the White House, she will over time “grow” as the Washington Post likes to put it, that is, move to the left. Perhaps that is wrong. But the point is that there is no way to know from her record; and unlike Roberts, who implicitly would have to repudiate a career-long record of writings and other output, Miers would face no such constraint in terms of a shift toward the Breyer/Ginsburg/Souter axis. And so: There is good reason to believe her more likely than Roberts to move to the left, particularly given the Beltway blandishments available to those who do so. The Harvard lectureships. The conference panels in Europe. Ad nauseam. Does Clarence Thomas—by far the best of the current Justices— receive many such invitations? The question answers itself. Perhaps Miers indeed will prove steadfast. But what is the rationale for accepting this risk?
That she is likely to be confirmed is irrelevant to the issue of Constitutional philosophy, both in its own terms and in the larger context of depoliticizing the confirmation process. Here was a chance for W to nominate an intellectual giant. Here was a chance to force the leftists to oppose a stellar nominee, in a world in which such a stance would be far more difficult politically than in 1987. Here was a chance, with a nomination of, say, Janice Brown, to expose the utter hypocrisy and nihilism of the Senate blue staters. Here was a chance, in short, to drive several nails into the coffin of Borking. Here was a chance to excite the Republican base in advance of the 2006 elections. Here was a chance to entice the leftists into a filibuster and thus to shove the nuclear option down their throats. (Do not let anyone tell you that fifty votes would not be available to do so.) And so what did W do? He looked into Miers’ eyes, presumably, and liked whatever it is that he thinks he saw. Not in every dimension, but in most, W is a disaster.