The Volokh Conspiracy

Ron Cass Defends Miers Nomination: Ron Cass, the former dean of the Boston University School of Law, has published a defense of the Miers pick, although he concedes (as many of her defenders do) that "Ms. Miers wasn’t my pick, and wouldn’t have been if I had been choosing, because she doesn’t bring to the Court demonstrated excellence in the skill set that I value most for that position." So given his opinion of its merits, what then is his defense of the nomination?

You really should read the whole piece (entitled, Stop Whining – Right Choices and the Courts) which includes responses to arguments I made on Tuesday in my Wall Street Journal op-ed, but here is how his defense ends:

Conservative critics should be especially ashamed. Conservatives have been insisting that judges should respect the Constitution and laws, secure that this is enough to ask. Conservatives also have been aware that the Constitution grants substantial discretion to the President in making appointments. It is his call. We have elections to determine who gets to make picks such as this, and President Bush – to the delight of conservatives across the nation – won. Now he has picked someone he knows well and believes shares his vision of modest and law-bound judging, someone who helped steer the President to select other judges in that mold. Judges like John Roberts.

It’s time for those who have made common cause with the President to give him exactly the presumption that the Constitution does and political alliance should – that he has the right to make appointments of anyone who has the competence and temperament for the job. The presumption is that he has done this.

Now it’s time to stop whining before the next turn of the political wheel gives conservatives something real to whine about.

More Defenses of Miers: Here is a link to the text of this morning's radio address by the President defending his choice of Harriet Miers to the Supreme Court.

Here is a link (scroll down) to a transcript of a RNC/White House Conference Call on Harriet Miers (10/06/05) to conservative activists urging them to support the nomination.

At both links, you can listen to the audio if you prefer that to reading a transcript.

The Miers Standard: Apart from ethical and other issues extraneous to qualifications, there are at least two dimensions of "qualifications" to be on the Supreme Court: (1) Evidence of legal ability of the sort needed by a Supreme Court justice, and (2) a "judicial philosophy" by which one approaches the task of judging at this time in the Court's history.

Given the defenses of the qualifications of Harriet Miers to which I linked below, who could a Democrat president nominate to the Supreme Court who would meet what may one day be called by Democrats the "Miers Standard" (like the "Ginsberg Standard" of confirmation hearing testimony now deployed by Republicans)? Here is another way to put the question: if Harriet Miers is accepted by Republicans as qualified to be on the Supreme Court, who are they estopped from opposing in the future on the basis their of "qualifications."

I do not mean to suggest that a Democrat president will actually appoint such persons as are on whatever list is generated here. To the contrary, our most recent experience with Democrat appointments to the Supreme Court were Justices Ginsburg and Breyer, who satisfy anyone's criteria of qualifications related to ability (as opposed to judicial philosophy about which supporters and opponents can reasonably differ).

I mean this as an entirely serious exercise, rather than an invitation for frivolity--tempting and amusing as that may be.