Thoughts on Harriet Miers
As the entire country likely knows by now, President Bush has nominated Texas lawyer and administration insider Harriet Miers to replace Sandra Day O'Connor on the U.S. Supreme Court. Much bandwidth has already been "spilled" by bloggers over the nominee, and I doubt anything I have to say will be terribly original, but I nevertheless feel compelled to add my two cents. It seems to me that the Miers nomination is a transparent attempt by the Bush administration to hide the ball. Miers has never served as a judge, and therefore she has no record of opinions which could illuminate her judicial philosophy. Does she reject the Constitution's "right to privacy" as untextual? Does she believe that the New Deal and the 60s Civil Rights revolution are unconstitutional because the federal government's power under the "Commerce Clause" is limited to an 18th century definition of the term "commerce?" We just don't know. We don't know anything about Harriet Miers.
But apparently Bush does. Balkinization has recently written about Bush's "information advantage" on Miers, objecting that Bush obviously knows a lot more about her than any of the rest of us do. Bush and Miers have been bosom buddies since his days as Governor of Texas and she's served as one of his closest advisors since 2000. She's even spent time clearing brush with him in Crawford. Bush knows her thoughts on Roe v. Wade. Bush knows her thoughts on federalism. But we can be assured that neither Bush nor Miers will tell any of us. Not in the "discovery period" leading up to her Senate hearing and not at the hearing itself.
Nominating someone without "litmus testing" their thoughts on Constitutional issues seems reasonable to me when their credentials justify it. But Miers is simply a Bush insider. She doesn't have near the resume of John Roberts or of myriad conservative Courts of Appeals judges Bush could have selected. The President must at least give a good reason for appointing someone to the Supreme Court. And "I know her well and like what she thinks about the Constitution" isn't good enough.