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October 04, 2005

The Cost of Harriet Miers

Apologists for the Administration, flacks, and optimists have been trying to justify the nomination of Harriet Miers by answering a number of worries conservatives have voiced about her. Cheney assures us that she is in fact qualified, and as Eric notes below, she is probably socially conservative. But I think this misses the truly galling flaw of her nomination -- the opportunity cost. Even if she votes reliably for the right, America will suffer for her appointment, and her lasting influence on the court (don't forget she's 60) may be minimal, or risible, or regrettable.

All political decisions carry some opportunity cost, but few carry one as large as a Supreme Court nominee. In every Presidential election, we often talk of picking the lesser of two evils, an indication that the other guy is just marginally worse. And the alternative is limited to just that one other guy, and we know he's just as big of a party tool to have gotten his nomination.

By contrast, there is a relatively large pool of Supreme Court worthies, most of them impressive, qualified, experienced, intellectual heavyweights. Bush picked a nominee that, upon reflection of that pool, carries the greatest opportunity cost imaginable. While the WH is trying to tell us what we are getting with Miers, the critics are rightfully telling us what we are losing.

A regular conservative vote on the bench doesn't begin to compensate for decades of leftward drift. As Todd Zywicki notes at the Volokh Conspiracy:

There are two possible ways to think about appointments, one is to appoint those who will simply "vote right" on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. Thomas and Scalia have been doing the same thing for some time now, with their view of the law . . . Even worse, pick someone who supposedly "votes right" but has no developed judicial philosophy, and soon you have someone who doesn't even do that (Blackmun, Souter, etc.).

Bush's back-to-back appointments of Roberts and Miers is a clear indication that his goal is at best to merely change the voting pattern of the Court rather than to change the legal culture.

While many of us would prefer a justice who would provide intellectual leadership, someone like Scalia or Thomas, the Administration are asking us to do more than settle for less. They are asking us to settle for a loss. And there is no reason why Bush should ask that of us or why we should accept it.

Posted by Zach Wendling at October 4, 2005 12:52 PM

Comments

Posted by: JohnS at October 4, 2005 02:04 PM | permalink

Posted by: wahoofive at October 5, 2005 01:22 AM | permalink

Posted by: Joshua Claybourn at October 5, 2005 01:58 AM | permalink

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