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Tuesday, October 04, 2005

Why Miers?

I've been reading up on Miers a bit, and reading many of the blog entries and the screams from pundits. The fundamental question that I came out of it with was why did Bush pick her. Let me first off all discount a few of the common theories. Bush didn't do it just because he could, or because he wanted to 'stick it' to any group. That doesn't fit him at all. He probably didn't pick her because he felt weak and had to bow to Senate Democratic pressure as some have suggested. While that might have precluded some of the more extreme conservative candidates, Bush and the Republicans have enough power to get just about anyone confirmed. While they probably do want to avoid a filibuster showdown, Miers isn't an especially good choice for the 'too competent to be opposed' plan (like Roberts was) although she won't have a lot of paper trail to use against her. Despite the obvious fact that she is very loyal to Bush, that alone doesn't explain this choice either. I don't think it 'cronyism' as some have alleged. Personal loyalty won't really mean much in a couple of years and I don't think any President picks a Supreme Court judge without considering their legacy. He expects Miers to be basically competent at least, and I also expect that he expects a certain type of voting from her, and he figures he can count on her for that type of voting more than anyone else. The question then, is what does he see in her, that he doesn't think he can get from someone else. It could of course be originalist jurisprudence. There are though many others who would fit that choice, and have a much stronger reputation. In addition, when we look at the Roberts pick, it seems pretty clear that he is not a 'originalist' and is much more pragmatic so it doesn't seem that originalist philosophy is all that important for Bush (or Miers who helped pick Roberts.) Miers is of course an evangelical Christian, and I think we can assume that she is at least personally opposed to abortion. How she would legally rule is a tougher question, but again it seems unlikely that Bush would be focusing narrowly on this issue. I am pretty sure that all things being equal Roberts will maintain the status quo on abortion, so I don't think it is a huge priority for either Bush or Miers. One point though (and I saw this mentioned on a couple of blogs, although I cannot remember which ones) is that Miers (and Roberts) is probably supportive of executive power, especially in times of war and in relation to the war on terror. That to me seems like it might be the main reason Bush chose her. I think it pretty obvious that since 9/11 Bush has made the focus of his Presidency fighting terror. To that end, it is not unlikely that he wants a Judiciary that is friendly to executive power, both for himself and for his successors. Most of the 'originalist' type judges certainly cannot be counted on to support that idea. When we also consider that Bush certainly seemed to want Gonzales (and might still want him if he gets a third pick) this hypothesis seems even stronger. If this notion is correct, it still leaves me troubled about Miers. I am not as instantly anti-government power as some. My basic approach is that security and liberty must be balanced, and without a sure understanding of the threats and capabilities of our enemies (most of which is classified but probably known to Miers) it is hard to be sure where the proper balance is. If nuclear terrorism is a real possibility in the near future than that would justify more extraordinary measures, while if nukes are (as we hope) pretty unobtainable to terrorists the threat is weaker and less power is justified in government hands. That doesn't mean we should blindly trust though. I look skeptically at expansions in government power and want to make sure that they make sense and don't go to far. Miers will be in a position to help expand executive power, and assuming I am right, that is her purpose in being on the Court. That troubles me more than a little, although I am not 100% certain it isn't needed. Update: Here is a good post by Beldar on why it is unfair to consider Miers a purely crony appointment.


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