What the Withdrawal Really Tells Us
Look, I'm glad that Harriet Miers withdrew her name. I really am. She was not qualified, and would have provided little of the intellectual leadership that the court has been lacking during its period of domination by the Kennedy/O'Connor fifth vote. That said, I think anyone who has been paying attention to this nomination knows that her withdrawal has nothing to do with Senate demands for executive branch documents.
Instead, I think this withdrawal, and the rebellion that caused it, expose the conservative judicial movement for what it really amounts to in the end: a movement to overturn Roe v. Wade at all costs. Sure, Miers is not qualified. She never was. But it was not until the speeches came out yesterday, with their implicit sympathy for Casey/Roe, that the pressure on the WH heated up enough to force her withdrawal.
Let me qualify that by saying that I don't think every individual conservative is so result-oriented. I am quite sure there are many individuals who do their best to stick to a more result-neutral approach to supporting judicial nominees, whether it be deference to the executive, non-ideological qualifications, or the like. But I think the goal of overturning Roe v. Wade is the glue that holds the movement together, that unites those whose philosophies are driven by Catholic or evangelical religious faith and those who are motivated by strict constructionism, originalism, or any other ostensibly result-neutral philosophy. It is that results-oriented glue that largely keeps me out of the conservative judicial movement, despite my attraction to much of the jurisprudential philosophy produced by conservative legal scholars.
I've also previously been quite frustrated at Democratic obstructionism and the attempts to focus on the judicial philosophy of Bush nominees. I don't think litmus tests are appropriate. I think a party that has won both chambers of Congress and the White House has the right to nominate qualified individuals with conservative jurisprudential views without facing filibusters from the Democrats.
But I think the conversative movement has now made clear that for them, just as for the Senate Democrats, ideology is a perfectly acceptable reason to oppose a nomination. No one has the high ground any longer, if they ever did. That bodes ill for the future of judicial nominations, and that is a loss for us all.
