Harriet Miers. Given that the minority leader, various other Democratic senators, and of course most Republicans are on record finding her satisfactory, it is reasonable to assume that she will be confirmed to replace Justice O'Connor. Various conservatives (and some conservative leaning libertarians) do not like the choice -- they say it is because of her lack of qualification and too close ties to the President (one really does not take the latter too seriously, since it really has not been a problem in the past), but most assume it is because she might be a bit too moderate (at least in social issues) -- and this helps her as well.
It is a reason for Democrats, including progressives/liberals (as has been the case in some blogs), to see it as a strategic bonanza. Maybe, besides not beeing too conservative, there is a reason to piss off conservatives. The glee is only barely under the surface. I recall similar thoughts raised in respect to torture czar Alberto Gonazales being floated as a nominee. In other words, the fact he was involved in furthering detainee abuse was not most important thing. After all, he seems to be pro-choice* and his nomination would cause conservatives pain. Conservatives, especially religious ones, like pain though: they make liberal victimhood look downright minor. You think some libs want it all, when they got more than one can hope for? Think about conservatives whose allies control all three branches.
[A top legal reporter was somewhat annoyed that President Bush announced the nomination on the first day of the term given this basically stole Chief Justice Roberts' thunder -- the first day of the job etc. I don't know if this is a big deal, but the timing is somewhat interesting.]
So, no just pissing off conservatives is not really my concern here. Nonetheless, there is another argument: Roberts along with Miers are not too bad, they are not (heaven forbid!) Scalia/Thomas clones. Roberts, like Scalia, has a history of supporting conservative presidential administration and causes ... this is mainly "the past." Anyway, Roberts seems to support "privacy" (he notes all nine do -- get the idea?) and "substantive due process" (but Rehnquist to some degree did as well, as do even Scalia/Thomas to some degree, the latter at least by another name). Roberts might not have gone overboard about such things -- you know, like Rogers-Brown calling Social Security theft or something, but he seems fairly conservative. One even support gay rights to some degree and be conservative -- just look at Andrew Sullivan.
As to Miers. On the surface, she really does not seem too exciting. First, she is a Bush crony ... in effect, the President's personal lawyer. Their relationship has gone back to Texas, where she was a major player in the legal profession, though no "great voice" by any means. She was a business lawyer, heading up a notable if apparently not elite firm, a firm that had some ethical problem that it is unclear Miers had any direct relationship in. Through her legal duties, some moderate indications come out (such as some support of rights for gays), and the head of Talkleft (if not one of her co-bloggists) basically gave her an endorsement. It is her "real life" experience as a business lawyer that was seen as a plus by Sen. Reid. It plus the crony factor is probably what was the determining factor for Bush -- crony/loyalist and pro-business is his cup of tea.
President Bush also probably relates to her private religious background -- she belongs to a conservative leaning evangelistic church, thus even if some of her public positions are not totally conservative, her morality does seem to lean in that direction. One would think this would not totally rub libs and such the right way -- how it would translate into legal doctrine is unclear. Nonetheless, since she has not been a judge [this is grasped at by some as a disqualification; I am not aware that Frankfurter, Brandeis, and Douglas were unqualified ... Rehnquist, well ... anyway, others like Thomas and his predecessor were barely judges, while some others were state judges that rarely had to deal with some of the more sensitive cases that justices must handle annually], personal belief probably will influence her judgments -- it does for everyone.
I don't like her. I will put my cards on the table: the crony thing rubs me the wrong way. Experience has shown that President Bush is not someone I like as a person or as a public official. Someone whose business was to serve him and who he can relate to is not someone I want as a justice of the United States. I would add that the business crony aspect is troubling too, but damn if he is the President, and something like that is expected. Vote a business crony sort as President, you have to expect that to some degree, right? So, what would trump such concerns?
We do not quite know what Miers' legal philosophy is, but one might make some guesses. The best one would be being sympathetic to business -- there is not likely to be a "smoking gun" here given her resume, but this appears logical. She also would by sympathetic to religious believers, being part of the group that wants a stronger mix of church and state. Miers would also be somewhat lenient at least toward executive power, if she is even halfway sympathetic to the mentality of her boss. I am not sure why progressives are happy yet. As to other issues, a reasonable guess might be conservative but more moderate/pragmatic, perhaps Kennedy-like. One does not know her "causes" though, like his sympathy toward free speech, equality, and so forth. So, there is a "black box" there. Again, it is something of a wash.
The final thing would be that ultimately Bush is the nominating party. He would always make the choice. So, the alternatives would not be any better. This is the bottom line of many people -- the idea is that one takes the best one can do. But, I am left with a question: let's say more Dems voted against Roberts, would Bush not vote a pro-business, privately religious, close crony? [Did Reid "deal" with Bush by his symbolic "no" for Roberts in return for Miers?] She seems a pretty nice choice for him, right? Anyway, the cronyism still pops up -- put aside that history has shown that when cronyism is a determining factor, the resulting justices tended to be lackluster. It just rubs the wrong way. This is not the best we can do ... the crony thing just icings the cake.
No. The Senate will probably confirm her by numbers similar to Roberts, though. SCOTUSBlog and some others think not, but if not, I fear the next nominee will be someone we truly will not like. Still, you know what? Some great conservative legal mind that I can respect might do it for me. I am ready for someone that impresses me out of this administration -- the fact their bottom line is personal loyalty and pro-business sentiments do not really do it. In fact, progressives should be concerned about such things too. Call this a "win," if you like ... do not expect me to do so.
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* President Bush is on record that the political atmosphere does not allow overturning Roe v. Wade root and branch. It does allow chipping away, including in the all too under-recognized funding area. The U.S. has gone out of its way to defund family planning programs -- even those primarily concerned with women's health -- if abortion is but one aspect. Think also of the domestic sphere, where abstinence education is federally funded.
In this area, assumingly, educational invasion of parental moral training is acceptable -- as long as the invasion is selectively done. Anyway, the point is that a truly "pro-life" justice is not really the point. The point is to chip away. Likewise, both Roberts and Miers, one at least indirectly thru a spouse, the other directly, is "pro-life."