The Next Nominee

Friday, October 28, 2005

THE COLLAPSE of Harriet Miers's nomination to the Supreme Court carries two key lessons for President Bush as he tries once again to fill the seat of retiring Justice Sandra Day O'Connor. The first is that quality matters. When Justice O'Connor announced her resignation, we listed "professional qualifications of the highest caliber" as the first criterion for a nominee capable of attracting broad support. Unfortunately, Mr. Bush's blind spot about those who have served him long and loyally clouded his judgment as to how Ms. Miers would appear outside the West Wing.

Ms. Miers's solid and serious professional history did not deserve the derision it received. But it did not look much like the resume of a Supreme Court justice either, even to people who agree -- as we do -- that great justices need not come from the ranks of federal appellate judges. Her personal lawyering for Mr. Bush, her minimal public record and her failure to reassure senators in early interviews raised legitimate anxieties among liberals and conservatives. Particularly compared with John G. Roberts Jr.'s sterling qualifications to be chief justice, the combination of thin credentials and apparent cronyism was glaring. Even in a polarized country, people of both parties want a Supreme Court made up of jurists of distinction and independence.

The second lesson is that some on the right are as capable of demanding loyalty oaths on abortion, and of refusing to give a nominee a fair chance, as some on the left -- and every bit as offensive in so doing. While many conservatives were understandably troubled by Ms. Miers's professional credentials and lack of a known judicial philosophy, others were simply unsure she would be a reliable vote on their issues. It was to reassure such people that the White House took the degrading steps of advertising her church attendance and getting friends to vouch for her antiabortion views, steps that have undermined its ability to argue that such topics are off-limits for liberal interest groups or Democratic senators.

The Miers debate gave the lie to a common Republican assertion that the judicial nomination wars are a struggle between liberals demanding particular results from the courts and conservatives bent on fidelity to a coherent judicial methodology. Rather, there are people in both parties for whom results on social issues trump everything; similarly, there are people on both sides for whom seriousness about the law as a discipline independent of politics remains the lodestone of a good judge.

In looking for a new nominee, Mr. Bush may be tempted -- particularly at a time of political weakness -- to mollify his base with a nominee more "reliable" than Ms. Miers. If that means a nominee with a history of pounding the tables on behalf of conservative causes, he should resist the temptation and instead nominate someone whose approach, modesty and views command respect across the political spectrum. It is important to remember that in nominating Ms. Miers, Mr. Bush was not simply attempting to put a loyalist on the bench. He was also nominating, rightly in our view, someone not obviously offensive to the opposition party and without evident radical ambitions to remake society. He should now pursue this approach with a nominee whose professional credentials stand above dispute.

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