The Shifting Supreme Court, Part 11

Despite all of the criticism around her nomination, White House Press Secretary Scott McClellan said that Harriet Miers is “‘looking forward’ to answering questions posed to her by members of the Senate Judiciary Committee during her confirmation hearings,” despite the request for a delay so that she can prepare. Of course, McClellan is supporting the President’s view that Miers is an excellent candidate for the Supreme Court, further stating that

“Harriet Miers looks forward to answering those questions when she goes before the Judiciary Committee. I think that the American people will see that she is someone who is exceptionally well qualified and someone who has a conservative judicial philosophy….She is someone that has deep respect for our Constitution and our laws, and believes that we should look at the law and apply the law; we should not be – judges should not be making law from the bench."

David Limbaugh also wrote a commentary about the importance of this nominee being a true originalist, and how that has lost its meaning in the middle of everything:

Unfortunately, some conservative observers of the Miers nomination have fallen into an anti-elitist trap. They correctly distrust over-intellectualizing – or at least the snooty, pseudo-intellectualism that emanates from the academic Left. They also have a well-placed aversion toward "over-lawyering," including the tendency to make the simple more complex. Thus, they instinctively react adversely to the argument that Ms. Miers doesn't appear to have the optimum background to go toe-to-toe against some of the seasoned liberal justices on the Court, no matter how committed she says she is to the judicial philosophy of originalism.

I firmly believe that for any justice to have a significant impact on restoring the Constitution to its originally understood meaning, it won't be enough that he pays lip service to the popular cliche not to "legislate from the bench." Preferably, he will have developed his originalist philosophy over a considerable period of time, during which he will have considered and "unlearned" some of his law school indoctrination. The universe of potential justices who can be safely relied on to have given the subject enough thought to have unlearned the law school dogma is quite small. True, there may be untold numbers of potentially great originalist justices out there. But we have no way of knowing with the "stealth candidates," and there is simply no reason to take the risk when we don't have to.

But given the crapshoot that choosing judges has proven to be for well-meaning Republican presidents, I just think it would have been far more prudent for President Bush to have chosen among those jurists, practitioners and scholars who have demonstrated their originalist wares in the course of their legal careers. The stakes are too high to gamble on someone with no track record in the things that matter most for such an appointment – no matter how well President Bush may believe he knows Harriet Miers.

As the saga continues about the discontent with Miers’ nomination, some conservative activists have actually gotten together to create a site called http://www.withdrawmiers.org/, calling for her withdrawal and for President Bush to “immediately begin the vetting process of candidates who are stronger alternatives." They also have a petition to sign asking President Bush to withdraw her nomination, if she doesn’t first.

In the case of her withdrawal, especially as she doubts Miers’ qualifications for the job, Barbara Simpson writes about the very real possibility of Alberto Gonzalez being the next nominee.

The O'Connor seat remains open and Miers was named and controversy is rampant: nice woman, not qualified. What happens if she steps down? What if the president withdraws her nomination? Enough pressure from the Senate, the media and the public could make it happen.

What then? Who's next?

I'll tell you who I think it might be and I've thought so from the very beginning. "Trust," my foot. It wouldn't surprise me if this was the intent all along because he was said to be George Bush's first choice for the first vacancy.

His name didn't gain much traction because while the man is well known, he presents many concerns for conservatives. Nominally a conservative, he's a social liberal.

Who? Old friend (crony?) of the president. Texan. And it doesn't hurt he's Hispanic: Alberto Gonzales.

If it transpires he's named to the court, it'll cause more than ulcers among the GOP.

Gonzalez (a long-time attorney) is now U.S. attorney general. Prior to that he was legal counsel to the president (as is Miers), head of the Supreme Court search team, member of the Texas Supreme Court, Texas secretary of state, legal counsel to Gov. George Bush, senior adviser to that governor, Texas chief election officer and Gov. Bush's lead liaison on Mexico and border issues.

It certainly raises the question of the influence Gonzales has on the president's soft border policies and conciliatory attitude toward Mexico.

It's not reassuring that Alberto Gonzales was a member of La Raza, a far left, extremist, frequently militant Latino organization whose name translates "The Race." Its main goal: the return of the American Southwest to Mexico. What's going on? Quien sabe, senor, but hang on, the ride isn't over.

If this is a possibility, things could go from bad to worse. Let’s see what happens with Harriet, and if she does well with the hearings. If she doesn’t work out in the end, either by withdrawal or by non-confirmation, let’s hope that President Bush won’t make the same mistake twice.