More On Miers

John Fund announces that he has changed his mind on Miers from last Thursday, when I quoted him approvingly here. Fund seems to argue that we shouldn't wait for the information the hearings will disclose before opposing Harriet Miers. The problem is that he disclose any "silver bullet" that explains his volte-face.

Here's how I see it. Is there anybody that's thrilled with the Miers nomination like we were with Roberts? No. Does every conservative wish the President had picked someone else? Yes. But that's not the real question here -- what's done is done. The real question is whether we should be calling for her withdrawal, etc., before we have heard a single word issue from her mouth before the Judiciary Committee.

I've said before that opposing Miers isn't out of the question -- but it should be on facts, not foreboding (of which everyone, I think, has a real and present sense). There is still time after the hearings for the nomination to be opposed, if it must be, and for it to be withdrawn, if it should be. But it strikes me that there are significant advantages in giving Ms. Miers a chance to speak for herself. Among them are:

(1) Ideology. Forcing a Miers withdrawal before her hearings, and clearly on the basis of ideology, legitimizes the idea that ideology is a sufficient reason for opposition to otherwise qualified (if not optimal) judicial nominees. Not only is this an inversion of the traditional GOP argument against the Democrats, it is also inconsistent with Republicans' treatment of, say, Ruth Bader Ginsburg. If we believe that the Republicans have a good change of holding the presidency and the Senate after 2008, this is a position we should avoid. And don't think the Dems won't use it against us.

(2) Politics. As this piece points out, the Republican rank and file are disposed to look favorably on the Miers nomination. Minds can be changed, but there has to be a concrete reason for the changing. Right now, there are certainly many doubts about Miers, but few real facts. And reasons like "we're afraid she's not an originalist" or "she's not the best qualified candidate" or "the President should have picked someone else" don't really cut it with regular people who see nothing amiss with Ms. Miers' credentials and who trust the President based on his conduct vis-a-vis tax cuts, appellate judges, the war on terror and other matters.

In fact, the outcry by some has been so quick, so vehement and so savage that, in some ways, it has put conservatives, and perhaps Republicans generally, in a box of their own making. If the nomination goes forward, blood letting and internecine warfare continues. If it's withdrawn (which won't happen, BTW), the President looks like he is caught in thrall to a group of extremists (no, I don't believe that Miers opponents are extremists, but that would be the appearance).

Here's why. Imagine if a Democratic president appointed someone about whom little was known -- and the facts that had trickled out had given some reason for comfort and alarm to both sides. Nan Aron refuses to endorse. And immediately everyone from Laurence Tribe to Katrina Vanden Heuvel to Paul Krugman to Ralph Nader demands that the nominee be withdrawn, without even having heard her testimony. And news came out that they were, collectively, busting Howard Deans' chops. To "normal" people on both sides of the aisle, it would sound like a premature and frankly unreasonable temper tantrum on the part of some activists -- and we would only hope that news of the rift would travel far and wide, so as to suggest to the vast middle of the American people that some pretty "scary extremists" were calling the shots on judges in the Democratic Party. And we'd hope that everyone would remember come Election Day. Don't let's come across that way.

And let's not create a misperception that will allow us to be caricatured by our opponents on the left as snobs, who have no regard for the intellect and abilities of "regular people" -- or even practicing attorneys. For years, despite evidence to the contrary, the left has insisted that it's the party of "ordinary folks." Allowing our criticisms to sound elitist will reinforce an argument that has no merit.

(3) Fairness. From everything I've read, Harriet Miers is a big girl who can take care of herself. And I understand the anger at the President for nominating her and even some of the anger at her for accepting. And a Supreme Court seat is a privilege, not a right. But it does seem that an element of fundamental fairness is involved in giving the woman a chance to be heard before we join in lockstep to demand that her name be withdrawn. After all, even if it can't always be the primary consideration, it's worth remembering that -- even though this is politics, and politics ain't beanbag -- there is a person at the center of all this; a "lovely person," in fact (even according to one of her most stringent critics), and certainly a person of accomplishment and unquestioned integrity -- even if she isn't our first (or tenth) choice.