Miers: Mind the Gap?

Putting together the points about Miers being close to Bush and the complaints about her lack of a public record on the subjects with which the Supreme Court deals, what is striking here is the gap between what Bush knows about her and what the public knows about her. We are beyond reading tea leaves when we are dissecting how many cookies she baked for her church, and what that tells us about the likelihood that she will find displays of the ten commandments constitutional. Insofar as Souter was a “stealth” candidate, it isn’t as if George H.W. Bush knew him much better than the rest of us could if we read his opinions. White’s views were largely unknown to the public, but he was not particularly intimate with Kennedy. My guess is that the last nominee for whom the gap (between the President’s private knowledge and the public’s available knowledge) was really large was Abe Fortas — although even there the gap may have been smaller, in that he had taken positions on a number of important public matters.

So, unless we learn significantly more about Miers in the coming weeks — a definite possibility, but by no means a certainty — it seems to me that one’s assessment of her jurisprudential views will largely be a function of one’s assessment of:
A) Bush’s success in determining how she will likely vote on issues that are important to him;
B) What issues Bush regards as important; and
C) Whether one agrees with Bush’s position on those issues.

For Bush supporters to support her on these grounds (i.e., her jurisprudential views), it seems to me that one has to have some confidence in all three. That means that you need to have confidence in Bush’s ability to judge how she will vote (maybe she’s told him in so many words, but probably not; still, there might be enough for him to make educated guesses with some confidence). And you need to be confident that he regards as important what you regard as important. As David Bernstein noted, it may be that Bush is choosing her because he really cares about executive power and the war on terror, and he knows where she’ll come out on those issues, but that he isn’t prioritizing issues that are central to his political base. For Bush opponents, by contrast, one needs either to have significant doubts about Bush’s success in predicting her votes or to believe that what he regards as important is a relatively small universe.

This should not necessarily determine one’s support for or opposition to her — perhaps she should be opposed on grounds of cronyism or the unimpressiveness of her background, or perhaps she should be supported on the grounds that the alternatives to her are likely to be worse — but it does seem to be an important calculus in assessing her likely jurisprudential views.

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