Another Perspective

SCOTUS Honor

About the Miers debate: both sides are right. Now what do we do?

By 10.12.05

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I have good news and bad news. Good news first. The good news is that my opinion is so respected at the White House that they assigned a special staffer to monitor my column. The bad news is that it was the guy who just got arrested for spying for the Philippines. How heartless is that? Or as we say in Spanish: "Corazon aqui? No!"

Kidding aside, colleagues and readers have been prodding me to issue a verdict on the Miers selection for the Supreme Court. But it seemed to me that conservatives judging Bush's choice of judge to be poor judgment within minutes of the announcement were being a tad judgmental. I recalled my father studying with me many times in my childhood the very first Mishna in the section devoted to ethical precepts: "The Men of the Great Assembly (the Supreme Court of Israel circa 400 B.C.E.) said...be deliberate in judgment..." Wait until the smoke clears, I thought, before becoming incensed.

Now, more than a week hence, the smoke has not only failed to clear, it has thickened into an impenetrable fog of asperity. Conservatives are crowing that she's a crone and a crony and wailing that worthier women were waiting on the wayside. There have been many woe verses read by pro-lifers. Some say that her SMU degree is a smudge in her makeup. Apparently, she has no drinking partners in the "movement," which is to say that she lacks the proper bar associations.

My favorite was the critique of Bush for seeming flustered during the impromptu press conference he held the day after the nomination. This from the same people who harried him into these mires. Still, everyone involved here is a friend of mine, and they all mean well. The last thing anyone needs is a bruising internecine battle in these precincts. So at this point the peace-making impulse is dominant, and I'm inclined to split the difference by saying: "You're right...and you're right." Fortunately, in this instance, the logic follows the diplomacy. They are both right.

The fact is that the critics have a strong point when they say that judges who have been loyal to the principles of judicial restraint need to see that there is a reward at the end of the line. If liberal judges get plums from Democrats but Republicans fear to laud open conservatives, then only the most selfless souls will be moved to toil in the vineyards. No movement can long survive that does not materialistically reward its idealists.

The other good argument is the one that says we need to have an ideological showdown at some point. If we must battle NOW, why not now? By always ducking the title bout, we convey a spirit of cowardice. This issue of Constitutionalist judges has proven to be a winner in various electoral encounters. Why not take the battle into the biggest arena of all? Let the liberals be unmasked in their weasely deconstruction of the Constitution.

All this is fine. It's true in its way. They forget one circumstance. Fate has dealt the cards in reverse order. We are not replacing one of the four Gore votes in Bush vs. Gore. Both Rehnquist and O'Connor were/are more or less on our side. The time to test the muscle of the conservative element in our populace is not now. Now our job is to slip in our pals. Not the boisterous ones, the reliable but quiet ones.

So the Bush choice is good generalship. It recognizes that there is risk in waging this war, in staging this debate. It is only a risk worth taking where the prize is gaining back one of those Gore 2000 justices. A ruthless clash over Ruth Ginsburg's spot? Certainly. Herculean labors for Souter's seat's suitor? Absolutely. Same for Breyer's buyer and getting even with Stevens. But to replace O'Connor we have to be more... er, conservative. A trusty oak, a woman of honor, is what we need: "I know her heart."

This reminds me of the fellow who tried to get his daughter into the opera. He approached the director and described her voice as being similar to Beverly Sills's. "Here, listen to this tape," he said, and sure enough the director was becoming impressed. Suddenly he shouted, "Wait! Isn't this Beverly Sills herself?" "Yes," answered the man. "And my daughter sounds just like that." In this situation it's better not to push the well-known candidate into the fray. Better to send the understudy and to whisper in our ear that she is as good as the real thing.

This is my considered view of the matter and I must pass it along immediately to the White House. Let me look around here...I know I had one someplace...ah, here it is, a Manila envelope.

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About the Author

Jay D. Homnick, commentator and humorist, is a frequent contributor to The American Spectator.