Miers

President Bush 'œhas finally done it,” said Edward Morrissey in The Washington Post. By nominating White House Counsel Harriet Miers to fill Sandra Day O'Connor's Supreme Court seat, Bush has achieved something that John Kerry, Al Gore, and thousands of angry Democratic activists could not accomplish. He's 'œcracked the Republican monolith,” leaving the country's ruling party in chaos. The loudest 'œwails of betrayal' are coming from Bush's base, which considers the court the key battleground on social issues like abortion and gay rights. Conservatives had hoped Bush would replace the moderate O'Connor—who often voted with the court's four liberal justices—with a proven constitutional 'œoriginalist” in the mold of Robert Bork. Instead, he picked a 60-year-old lawyer with no judicial experience, no record of constitutional scholarship, and few known views. While everyone agrees Miers is a decent person, her only obvious credential is years of service to Bush, first in Texas and then in Washington. No wonder many Republicans are asking, 'œWhat in Bork's name was Bush thinking?'

That's easy, said Daniel Henninger in The Wall Street Journal. 'œGeorge Bush decided to nominate himself to the Supreme Court.' Bush has a well-known tendency to 'œpersonalize public policy,' and to 'œgo with' his instincts about people. In Miers, Bush found a fellow born-again Christian from Texas with a pro-business, pro-life worldview. For Bush, who has never been part of the conservative intelligentsia, that's good enough. But because Miers has contributed nothing to the conservative judicial revolution, said Terry Eastland in The Weekly Standard, we're left only with Bush's assurances that she'll move the court to the right. The White House keeps telling conservatives that Miers is a committed evangelical, as if that tells us 'œhow she thinks about the law and the role of the courts.' It doesn't.

Besides, said E.J. Dionne in The Washington Post, I thought a nominee's religious beliefs had no bearing on his fitness for the court. During John Roberts' confirmation hearings, Republicans professed outrage when Democrats questioned whether an observant Catholic could separate his church's teachings from his interpretation of the Constitution. Now Bush's supporters are telling conservative friends to support Miers because 'œher internal compass” has a needle 'œpointed toward Christ.” The implication, of course, is that her religious views will compel her to overturn Roe v. Wade. So when it suits this White House, a judicial nominee's religious views can be taken into account, and abortion can be used as a litmus test. That blatant hypocrisy isn't playing well with most conservative intellectuals, said John Podhoretz in the New York Post. We really don't want justices to base their rulings on their personal convictions, which is what produced Roe v. Wade in the first place. We want judges who will read the Constitution as it's written. No wonder so many conservatives see Miers' nomination as 'œan insult.”

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Perhaps conservatives are overthinking this, said Jack Kelly in the Pittsburgh Post-Gazette. So what if Miers isn't a constitutional scholar with years of court experience? The absence of a long paper trail proves only that Miers is more of a 'œdoer' than a 'œkibitzer.' She practiced law 'œwhere it matters most, in the courtroom.' Her work as White House counsel, 'œat the intersection of law and policy,' is as good a preparation for the Supreme Court as serving on an appellate bench. As for Miers' ideological bona fides, conservatives have rated Bush's judicial appointments to date as 'œoutstanding”—and it was Miers who, as Bush's counsel, vetted those appointments. Soon, Miers will have a chance to show us what kind of thinker she is at her confirmation hearings. Is it too much to hope that we approach those hearings with an open mind?

Dahlia Lithwick

Slate.com

Roe