As the winds howl around Supreme Court nominee Harriet Miers, I have come to think there are two problems with President Bush’s choice for the high bench.
There has been a lot of talk recently about how Harriet Miers will be a good Supreme Court justice because she has common sense. Well, common sense is fine…but as we don’t all share the same idea of common sense, and therein is the problem. Common sense without a judicial philosophy encompassing the role of the constitution and the courts makes for an unstable foundation to assess the constitutionality of law.
Lewis Powell made a marvelous record on the Supremes with common sense as a lynchpin. However, Justice Powell also brought a judicial philosophy to the position that was the overarching basis of his decisions.
We don’t know what if any judicial philosophy Ms. Miers has. It is true that there have been great and near great justices who had no federal judicial experience. The names Black, Frankfurter, Stone, Warren, Fortas, and Powell are some who come to mind. still, they all had some position that could or should have provided an idea of what their view toward constitutional law and the roll of the Supreme court-Warren being one whose experience did not accurately capture his philosophy.
Ms. Miers does not have or readily offer a judicial philosophy. One can be a competent or even great attorney without having a judicial philosophy. One cannot be a competent or even great Supreme Court justice without having one.
That’s my first problem with the Miers pick.
Without an idea of she believes-strict constructionist or no, judicial activist or no, respector of stare decisis or no-she is damaged goods going into the confirmation process, and it will be a long, hard slog to get her across.
And therein is my second problem with the Miers pick…
If the president is going to have to do this much work to get his pick across, why not put that effort into someone with a proven conservative record whose candidacy-successful or not-will rally his base in preparation for the 2006 elections?