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11/01/2005

More on the preferability of Miers

I want to respond to a couple of comments that were made about my remarks suggesting that Miers would have been a preferable Supreme Court Justice to Alito (even though this is basically a moot point, it does hold lessons for the approach we ought to take to Bush's judicial nominations). First, here is what Socialist Swine had to say:
Having supported Miers would have been would have been unwise to say the least.

1) No one knew anything about her views, do you really want to support someone just because they might not be an uber righty?

2) While she might be less far right than Alito, she still leans pretty far to the right if her choice in friends says anything about her political beliefs. Supporting her would be an act of capitulation.

3) Supporting Miers would have made the Democrats look like they're willing to support a nepotistic appointee with questionable qualifications for partisan reasons.

I think that the Democrats should have actually fought against the nomination of Miers and I think they should fight the appointment of Alito. I think they should fight tooth and nail against every nomination unless the nominee is someone that is a real moderate (rather than a moderate right winger).
With regard to 1), I wouldn't want to support someone per se just because they might not be an ultra-conservative. However, if we are faced with the choice between Justice A, who might be an ultra-conservative - or might not be - and Justice B, who we know is an ultra-conservative, I think it would be patently irrational not to prefer Justice A, all things being equal. At least that way, there's a chance we might not end up with a Scalia clone on the court; with the other option, there's (basically) no chance at all. How could we possibly prefer the latter?

On 2), I suppose there is some sense in which supporting Miers would have been capitulating. But here's the thing: the Democrats are going to capitulate anyway. They will, I guarantee it. Alito is as good as on the court already, assuming nothing earth-shattering is learned about him. If there's going to be a capitulation, I'd prefer capitulating with someone like Miers, who again might have turned out not to be another Scalia, as opposed to capitulating on Alito, who definitely is another Scalia.

With 3), I don't know whether this is true or not, but even if it is, it doesn't matter much. I care much more about the make-up of the Court, and the decisions it will make that will have an effect on people's lives - including women's fundamental right to self-determination - than I do about how the Democrats look to the public, though I do care about that too (and I might care more if I thought that the Democratic Party could sink much lower in the estimation of the electorate).

I too would prefer that the Dems "fight tooth and nail against every nomination unless the nominee is someone that is a real moderate," but that simply is not going to happen. Again, they are going to capitulate, the question is just who we end up with as a Justice when they do capitulate. It could have been Miers; now it will be Alito.

Jacob Deems also disagreed with me about the preferability of Miers over Alito:
people on the right side of the sphere are claiming that Democrats should have supported Miers to stave off the kind of nomination that Alito represents, and some on the left agree. That is a whimsical assertion based on farcical political grounds. Miers had no experience, and no qualifications other than her close alliance with the President.

So, I am to assume that as progressives we'd rather have an inexperienced, unqualified, presidentially loyal hack on the bench than a highly qualified conservative. I wholeheartedly disagree.

Although I think Alito is a conservative ideologue who will put such important issues as women's rights, and civil liberties at risk, he is beyond a shadow of a doubt experientially qualified and intellectually weighty enough to sit on the Supreme Court.

His nomination will breeze through, and if we are basing our judgments purely on qualifications, it no doubt should.
This strikes me as an extraordinary claim, and an approach to the judiciary that we should avoid at all costs. It's not that "we'd rather have an inexperienced, unqualified, presidentially loyal hack on the bench than a highly qualified conservative"; it's that we'd rather have an inexperienced, unqualified, presidentially loyal hack on the bench who might not sign over the rights to women's bodies to the whims of mostly male legislatures than a "highly qualified" (whatever that means) conservative who almost certainly will do so.

I take it what Jacob is saying is that judicial experience trumps ideology when it comes to the Supreme Court. I cannot imagine why anyone would think that we should accept such a principle. Again, women's right to control their own bodies is on the line here, and if ensuring that right means accepting a nominee with less judicial experience, then so be it. I'm not convinced that judicial experience is all that important anyway.

Think about: suppose you were able to choose the next Supreme Court Justice, but it had to be one of two people: Priscilla Owen, or Elizabeth Edwards (John Edwards' wife). Is there any progressive in their right mind who wouldn't choose the latter? Yet Owen is without a doubt more "experientially qualified" for such a job than is Edwards. But why should this matter?

George W. Bush was (arguably) more "experientially qualified" for the presidency than was John Kerry, in the sense than Bush had already been president for four years, while Kerry never had. Would any self-respecting progressive actually have preferred Bush on these grounds?

I'm not saying experience is irrelevant; if we were faced with a choice between two progressive justices, one of whom had extensive experience and one of whom didn't, then perhaps the former would be preferable. But given the choice between an "experientially qualified" conservative and a progressive with no experience, I'd take the progressive every single time.

Now, Miers was no progressive, of course. But as stated above, she would probably be less conservative than Alito; if given the chance to overturn Roe, she might have declined to do so, while Alito almost certainly will. And yes, given the choice between an "experientially qualified" nominee who is definitely an uber-conservative and a nominee with no experience who is something of a question mark, but almost certainly not as conservative, I'll take the latter every single time.

Frankly, progressives have a responsibility to do everything possible to keep conservatives off the Court. They are a menace to the basic freedoms of all citizens. Barring that, we have to at least try to ensure that we end up with the least conservative justices possible. I don't give a damn about experience; an experienced right-wing wacko who won't guarantee women's reproductive freedom is not qualified for the Supreme Court, as far as I'm concerned; I don't care if he's got a hundred times the experience of anyone else.


UPDATE: Brian Leiter has some relevant thoughts:
Let us recall the words of Judge Posner, an honest man:
I don't object to the fact that Senators are concerned about the ideology of judicial candidates; the President is concerned, so why shouldn't the Senators be? Anyone who is realistic about the American judicial process knows that ideology affects decisions, especially the 'hot button' decisions that engage the attention of politicians; and Senators are politicians.
While some number of cases that reach the highest stages of appellate review--namely, the U.S. Supreme Court--will demand only technical legal skills for their resolution, a significant number will, as Judge Posner correctly notes, demand moral and political judgment, and thus will engage the "ideology" of the judge. Every grown-up knows this, of course, which is why there is such a fierce political battle over the appointment of someone who will, on a range of issues, act as a super-legislator. I assume no Democrat would vote for Bush or Alito for President; there is no reason, then, why they should vote for him as a super-legislator.

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