Exit Miers, Enter Politics

Whatever Harriet Miers and President Bush say publicly, the real reason Miers withdrew her nomination to the Supreme Court was that she was not acceptable to ultraconservatives.
Hard-core conservatives in the Republican Party, such as Sens. Sam Brownback of Kansas and Rick Santorum of Pennsylvania, and hard-charging conservative interest groups such as Concerned Women for America and the Family Research Council, have made clear that they demand a nominee with established conservative bona fides, someone in the Antonin Scalia or Clarence Thomas mold. They will settle for nothing less. They don't want to take a chance on someone whose views, for example, on Roe v. Wade, are not known. They don't want another David Souter, who, though nominated by Bush's father, has turned out to be one of the more
liberal members of a staunchly conservative court.

All this reveals the hypocrisy of standard conservative arguments about the courts and judicial nominations. Earlier this year, conservatives railed against Democratic threats to filibuster extreme Bush nominees. Senate Majority Leader Bill Frist (R., Tenn.) solemnly invoked the principle that "all nominees deserve an up-or-down vote." The Miers episode exposes an exception to this rule; if a nominee is not palatable to conservatives, that nominee does not deserve an up-or- down vote. He or she will be forced to withdraw, at the whim of ultraconservatives (some of whom are not elected officials).

For years, conservatives have promoted the idea that judges are not political creatures. Their objection to the "liberal judges" who supposedly infest our court system is that they are guided by politics, not law. That is what conservatives mean when they accuse judges of "legislating from the bench" and when they praise "strict constructionists" (supposedly guided by objective truth, not politics). The implication is that judges can and should decide cases based on objective legal principles, not on ideology.

But the reaction to Miers shows that conservatives do believe ideology has a place - it's just a question of which one. Thus, the cry against Miers: Conservatives could not be sure she was conservative enough.

To be sure, some did question Miers' qualifications. But the real issue was her ideology. Clarence Thomas was barely, if at all, more qualified than Miers. But conservatives did not torpedo his nomination and would gladly support someone in his mold, with his qualifications, today. What separated Miers from Thomas in the eyes of conservatives was not her legal credentials, but her ideological ones.

Lawyers, judges, and law professors have observed for years the fact that politics does not stop at the courtroom door. Legal realism, the commonsense-based theory that judges' personal views, biases, and subjective preferences affect their decision-making, has been around since the 1930s. Law students learn about it in school and see it firsthand when they go into practice.
No objective legal source can tell judges how to apply ambiguous, but deeply important, constitutional principles such as "due process" and "equal protection" to cases. Judges are, at least in some cases, guided by their politics. They are human beings, not machines. That is the lesson of legal realism, and that is the reality of our legal system.

This is not necessarily a bad thing. I'd rather have a human being deciding death penalty cases than a computer that can spit out supposedly objective strict-constructionist logic. It is past time that we openly acknowledge this reality as regards judicial nominations, especially Supreme Court nominations.

Presidents choose nominees for political reasons, hoping they will deliver decisions congenial to their ideology and party. It should be fair game for either party to challenge a nominee as too far to one or another political side of the spectrum, too much outside the mainstream. We should all acknowledge this reality: that nominees are themselves judged, at least in part, on their political views (to the extent that they can be known, or discovered).

Now that President Bush, in deference to the conservatives who sank Miers' nomination, has nominated the conservative Judge Samuel Alito, a judge nicknamed "Scalito" for his similarities to Scalia, liberals should feel free to challenge the nominee. If conservatives chastise them for injecting politics into the process, liberals can point to Harriet Miers and remind conservatives that they did not invent the idea that, when it comes to judicial nominees, politics matters.

(This piece appeared in The Philadelphia Inquirer at http://www.philly.com/mld/inquirer/news/editorial/13047628.htm )