Miers Madness: End Game

I also missed the end of the madness. Harriet Miers bows out. Captain Ed covers it here.

While the nominee has surrendered, her advocates and critics haven't. They're still fighting each other on the whole debacle. The Captain has more:

My good friend Hugh Hewitt feels as though the Right has made a terrible mistake in speaking its mind about the actions of the Bush administration. He goes to the New York Times this morning to scold the Right for using the tactics of the Left in beating up what he sees as a qualified nominee:

OVER the last two elections, the Republican Party regained control of the United States Senate by electing new senators in Florida, Georgia, Minnesota, Missouri, North Carolina, South Carolina, South Dakota and Texas. These victories were attributable in large measure to the central demand made by Republican candidates, and heard and embraced by voters, that President Bush's nominees deserved an up-or-down decision on the floor of the Senate. Now, with the withdrawal of Harriet Miers under an instant, fierce and sometimes false assault from conservative pundits and activists, it will be difficult for Republican candidates to continue to make this winning argument: that Democrats have deeply damaged the integrity of the advice and consent process.

The right's embrace in the Miers nomination of tactics previously exclusive to the left - exaggeration, invective, anonymous sources, an unbroken stream of new charges, television advertisements paid for by secret sources - will make it immeasurably harder to denounce and deflect such assaults when the Democrats make them the next time around. Given the overemphasis on admittedly ambiguous speeches Miers made more than a decade ago, conservative activists will find it difficult to take on liberals in their parallel efforts to destroy some future Robert Bork.

What Hugh sees as a Borking, however, was the natural reaction from a conservative base that has seen Souter after Kennedy after Stevens, "trust me" candidates that later turned into lifetime-appointment nightmares -- and who still comprise a third of the Supreme Court. Even O'Connor has mostly disappointed those who believe, as Hugh does, in originalist thinking. Republicans have named seven of the nine sitting justices on the Court, and four of them have proven themselves to be superlegislators.

If Hugh wants to debate the meaning of the 1993 speech to the Executive Women of Dallas, a speech he repeatedly admitted on the air was "terrible" and not just "ambiguous" as he writes here, he knows he loses. That speech turns out to be the only documentary evidence of Miers' judicial philosophy that emerged from this candidate. The White House never bothered to produce anything, or more likely had nothing to produce, to counter it, other than George Bush's "trust me" based on a nonexistent vetting process.

Republicans made clear after David Souter turned south in a hurry what it expected the next time a Republican nominated a Supreme Court justice. We wanted someone who we could see -- through experience, writing, and erudition -- had the proper philosophy and temperament to not just cast a vote but to reverse decades of overreaching by the Court, turning themselves into an American version of the Iranian Guardian Council. Originalists, and most Republicans, don't want the Supreme Court making abortion illegal any more than they want the Supreme Court making abortions legal. They want the Supreme Court to stop making law altogether and focus on the strict meaning of the Constitution -- allowing the people's representatives, the Legislature, to make those decisions. (emphasis mine.)

I couldn't agree with the Captain more. The points I highlight demonstrate how important an originalist/textualist judicial philosophy is to the preservation of the CST principle subsidiarity. Without a Supreme Court that enacts it's proper role as the interpreter and applicant of law, our government becomes the equivalent of society as SCOTUS becomes the National Judiciarium. With it's fiats enshrining "rights" in activist policies that many in the country have not favored, or even agreed with in any way, the Judiciarium violates it's long-established credibility. We can't continue to violate the federalism that undergirds our right to free association and determination without jeopardizing the Rule of Law that has guided our creedal culture since our nation's birth. Perhaps the President now understands just how important the next SCOTUS nomination is. I pray, for all our sakes, that he does.