. . . and One Who Is Just Not Convinced There's a Problem

Hunter Baker, Esq., and Dr. Ben Zycher have laid out some very well-considered arguments for their opposition to the Miers nomination.

Yet I remain unworried. Both writers are concerned that Miers might not be as steadfast as Justices Thomas and Scalia. That is a valid concern. However, certainty is something that we are seldom afforded in the case of a Supreme Court nominee. Sure, Miers could turn out to be another Souter, but it is important to remember that the Souter mistake happened because the president who nominated him was insufficiently aware of the possibility that he would prove to be so different from what was expected, and hence failed to investigate him sufficiently. Yet who could be more aware of such a possibility than the current president, son of the man who nominated Souter to his great regret? And whose judicial philosophy could Bush the Younger possibly know better than that of Miers, who has been a close associate for years? The situation is not at all analogous to the Souter nomination.

I still have been given no evidence that should cause us to believe that Miers will not be in agreement with the strict constructionists, and the notion that even if she is currently on the reservation she will quickly be worn down by blandishments of wily leftist status-givers strikes me as rather speculative at the least. In addition, the idea that a Supreme Court Justice's effectiveness is based on his or her ability to persuade other Justices to accept his or her opinions does not take into account the way the Court really works. The Justices know what they think, and they do not change their minds based on arguments made in camera with one another. On the contrary, they volunteer to write opinions and then write them, and concur with one side or the other according to their vote on the matter. This is my understanding based on what I have heard directly from Justices themselves, and I find it a highly plausible picture. After all, Clarence Thomas and Antonin Scalia could not persuade Souter or Kennedy to join their side, much less move Ginsburg, Breyer, or Stevens even an inch. Finallly, the notion that the other Justices would look at Miers as a lightweight strikes me as extremely unlikely and of no moment. She would have a vote just like theirs, and that would be that.

As to the value of a public fight over judicial philosophy, wouldn't the point of such a fight be to establish a strict-constructionist judiciary? And wouldn't the creation of a strict-construction judiciary be achieved by the establishment of a strict constructionist majority on the U.S. Supreme Court? And isn't that exactly what Bush's nomination of Miers is intended to achieve? Why fight a war when we can just take the objective without a battle?

Ultimately, what counts is how a judge votes, and nothing else. I see no reason to believe that Miers will be anything other than the kind of Justice that the Republicans have been asking for, and that she will create a majority of such Justices on the Court.