Will I ever write about anything else again?

Citing, among other things, this op-ed and having this NYT article in the back of his mind, Ken Masugi reminds us of the unavoidably political dimension of the fight to restore a constitutional judiciary.

Yes, I think that this fight could have been waged with another nominee sitting across from the Senate Judiciary Committee, but that is not going to happen. Bush will not withdraw his nomination. What makes anyone--save for those on the Left--think that the defeat of Miers will produce a jurisprudentially more congenial replacement nominee? Consider this: if the Miers nomination timetable follows the conventional schedule, the Senate Judiciary Committee would likely vote in early December, with a Senate vote following in mid-December. If the nomination fails, the pressure on the President to name a filibuster-proof "consensus" nominee comes into play. After all, once we get into the new year, the impending fall elections start dominating the political scene. And if the Democrats think they can regain control of the Senate from a weakened Republican Party, they will likely do all they can to slow the process down. We could end up with a nominee the Post and the Times (not to mention the Harvard and Yale law faculties) will welcome as a "moderate."

Obviously, as well, should Republicans lose control of the Senate, the prospect for future attractive judicial nominees virtually disappears.

I bring to your attention a revealing comment from a reader (Brad Preston) on the Miers nomination. You can sense the frustration, and see the hope slipping away. Bush had better be right about her, and it would be in everyone’s interest if she revealed something of her virtues at the hearings (also see Knippenberg, just below):

Many of us find ourselves wishing that the President had nominated someone other than Harriet Miers. But she’s the nominee we have. What next?

Suppose, in the first place, that the combination of conservative discontent and (gleeful) liberal opposition is sufficient to defeat this nominee. Does this weaken or strengthen the President’s hand with the next nomination? If it weakens his hand (as I think it will), those looking for a judge faithful to original intent are even worse off in the next round.

Suppose, secondly, that Miers is confirmed, but raked over the coals in the process. This, it seems to me, emboldens the Left in its opposition to Bush’s future Appeals Court and Supreme Court nominees, and places the President on the defensive as he makes his nominations. This also is not an encouraging prospect.

Finally, there is the possibility, however remote, that Miers will exceed expectations in the hearings. I have no doubt but that, in the proverbial fair fight, Miers could hold her own, one on one, with almost anyone on the Senate Judiciary Committee (not a terribly high bar, to be sure). But if conservatives sit on their hands, the fight won’t be fair. One can only hope that Miers is a quick study and that she has (and is open to) the same kinds of teachers and advisors that Clarence Thomas had as he prepared for his judicial career.

For what it’s worth, I think at the moment that the second scenario is most likely. Everything then would depend upon how the Left decides to oppose this nomination. They could put the Bush Administration on trial, question Miers’s competence and credentials, or make an issue of her conservative evangelicalism. The third is probably a winner for the Bush Administration, or at least a loser for the Left; the first is a storm they could probably weather; the second represents the toughest challenge. My guess is that we’ll see all three tacks.

George Will is near vicious in his criticism of Bush, and the Miers nomination. Note this: "In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech." And this:

"It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court’s role. Otherwise the sound principle of substantial deference to a president’s choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends."

If I was losing patience yesterday with what seemed to me to be ducking a fight, today I am losing patience with Conservative elites--including some of my dear friends here--who seem to be too quick to point out Ms. Miers’ lack of "credentials." A caller on Hugh Hewitt’s show today and a graduate of the University of Dayton’s law school, pointed out that all of this whining about her degree from a small law school in Texas is starting to sound to him like Conservative elitism. I agree. Since when do big name law degrees hold sway with us? We don’t know this woman’s mind. Bush says he does. He ought not to be held accountable for the sins of his father. I will be amazed if this woman is a Souter. Peter’s point that we don’t know anything about this woman other than that she is not Alice Batchelder, Mike McConnell, or Edith Jones, is exactly right. So we didn’t get way. Boo, hoo. If you want your way in judicial appointments, stick your neck out and run for President.

We didn’t have to wait all too terribly long before someone made an issue of Miers’s putative religious convictions. Jeremy Richey calls our attention to this post by Paul Butler, a law professor at George Washington University.

The estimable Mr. Hayward, whose book is available on Amazon, and I have mentioned Harriet Miers’s religious affiliation. Over at Get Religion, Terry Mattingly has the goods, calling our attention to these articles and this helpful blog post.

I was at first perplexed by the Miers nomination. Then, the more I listened to the MSM and conservatives commenting, even on NLT), the more angry I became, becoming persuaded that this was a very bad move on Dubya’s part. I wrote a peevish paragraph on it, re-read it an hour later, but realized that my anger didn’t mean anything. I didn’t know why I was angry at Bush. Do I care that this person has no judicial experience? Of course not. I think it would be fine to appoint non-lawyers to the Court. Does anyone think that Walter Berns, for example, would be a bad appointment? Is it a problem that she works for Bush and he has known her for years and he likes her and trusts her? Of course not. So what’s the problem? Well, I just happen to know Alice Batchelder better, and I have heard from friends who know McConnell that he is really great. Well, Bush disagrees with me and my friends. O.K., we don’t know anything about her jurisprudence. How could we? Well, let’s give her the opportunity of explaining herself to the Judiciary Committee. Perhaps the conservative members of the Committee (e.g., Brownback and Coburn) can press her a bit and ask her to make her jurisprudence clear. Perhaps she can do it as well as Roberts did. Was Roberts’ testimony entirely satisfying? Bush has asked us to take this nomination on faith. So we should, for now. Then let her reason in front of the Judiciary Committee support both our faith and Bush’s.

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I missed this in the Post this morning.On the other hand, Randy Barnett has written a draft of the speech that more than a few folks on the Left and the Right might be tempted to give. Alexander Hamilton is invoked by both sides.

Could Miers be a half-in-the-closet evangelical? Jonah Goldberg wonders. . .

Here’s a WaPo profile from June, when she was White House counsel. Here are two profiles from today’s papers. She’s clearly enjoying a bit of a honeymoon in the press, perhaps in part facilitated by conservative discontent.

These analyses suggest a nomination made from political weakness, as if the President couldn’t afford the "distraction" of a fight with Democrats over this nomination. If there’s any "Rovian cleverness" at work here, it’s that conservative discontentment could make liberals more willing to embrace Miers. But my expectation remains that Senate Democrats and their interest group allies will not pass up the opportunity to revisit what they regard as embarrassments and/or hot buttons in the Bush Administration’s record. Because Miers was in the White House the whole time, they can dredge everything up, not so much to defeat her (that would be a bonus) but to make as much political hay as they can. And the less they find in her personal record, the more they will take this other road.

Ken Masugi calls our attention to a series of posts by Marvin Olasky, the Texas-based editor of World magazine. According to Olasky’s source, Miers is an active member of a conservative evangelical church, with views that match that general profile. This post on her "originalism" is helpful.

Harriet Miers is the President’s pick to replace Justice Sandra Day O’Connor. I do not know Ms. Miers. Few people do. She has no judicial record. Nothing in her background to demonstrate that she has a thorough understanding of the principles of the Constitution. Nothing, in short, to demonstrate that the President has fulfilled his campaign pledge to nominate people like Justices Scalia and Thomas who understand that the role of the courts is to interpret, not make, the law.