An Enigma Wrapped in a Mystery 

I've been reading a lot of reaction from around the blogosphere... especially the conservative blogosphere about Harriet Miers. Most of the reactions are pretty negative, as I mentioned previously. I also mentioned that I was really withholding judgment until I knew more. Well... I'm still waiting to know more. We still really don't know much about her, now approaching a week after her nomination. We may not know anything until she sits before a Senate confirmation committee... yet some people are already demanding her name be withdrawn from consideration. Frankly, I find the entire set of outraged reactions to be rather strange given most conservatives complaints about the court. Allow me to explain.

This Protein Wisdom post seems to have all the common elements of the thinking man's negative reaction:

First, let me address the issue of snobbery, which somehow - crazily - has begun to take root on the right and is being wielded like a claw hammer against Miers’ critics by some of the President's staunchest defenders, who have suddenly shed their conservative masks and assumed the role of preening, indignant neopopulists of the kind that Ed Gillespie just proved himself to be. Which is not to say Gillespie isn't in some ways correct - certainly, "elitism" has something to do with the opposition Miers is receiving from many on the right, though not in the way he imagines or intimates - but his attempt to suggest that elitism is a bad thing, particularly when it comes to selecting a Supreme Court justice, is quite bizarre in precisely the same way it would be bizarre to charge the New York Yankees with elitism for signing Alex Rodriguez to play third base, even if Harriet Miers can, like most of the rest of us, manage to slip on a glove and throw her body in front of a ground ball.

And that's because Supreme Court openings are rare; and while it is certainly the President's choice to select a nominee - and I obviously defer to him on that - the question is not so much about what he has the right to do as about what he should have done. And frankly, I find many of the attempts to demonize the critics of Bush's selection - who are making just this case - remarkably unpersuasive.

The crux of the argument is that despite the general hatred among conservatives of "elite" people... the Supreme Court demands someone who is elite. Positions come about only once in a while, and the position itself demands someone who is eminently qualified for the position. This person ought to know the law back and forth... have the letters practically oozing from their skin, and have precedents pop into their head without hardly the need to think about it.

It seems like an incredibly good argument against a Harriet Miers style pick. She simply doesn't have the background or the top notch education for the job. She doesn't know precedent. Here's the rub... Conservatives hate the current set of precedents. The problem with someone who is eminently qualified for the job is that they know all about precedent, and will feel the need to follow them. But if Conservatives hate the precedents that currently stand, why on Earth would they want someone who knew them all and would want to follow them? Why would they want a person who knew current judicial philosophy, and would be able to look at cases coming before the court and evaluate them keeping in mind stare decisis?

If Conservatives really want to change the current judicial philosophy, then they need someone appointed to the court who is perfectly willing to ignore the current philosophy. In order to really change how things are going, they need someone who won't mind going against current precedents in order to steer things back to the original meaning of the Constitution. That's why I find the reactions to Miers so puzzling. She seems just like the person who would be willing to do that.

Someone who is eminently qualified for the position would still feel the need to weave through the current set of old decisions, trying to fit a case that comes before the court into a confusing set of previous decisions, while still trying to change where things are going. I just don't think it's possible to do that anymore. This is one of the problems I've always had with stare decisis. I understand the need to have stability, and predictability in law. But too often I think that justices cling so strongly to that concept, that they are then completely unwilling to look at a wrongly decided case and say what everyone knows... that it was wrongly decided and change the precedent.

If people truly want to see a change in the direction of the court, then they need to demand someone who is willing to throw away previous decisions. Miers is probably one of those people. Is she the right person? That's a whole different question. Of course, in order for a real change to occur, she would also have to be convincing enough to take a few other justices along with her. Can she do that? I have no idea. I don't think we'll know if she's the right person, until she sits before the Senate, and even then maybe not. I'm at least willing to wait for the confirmation hearings to make a strong judgement.