Bench Memos

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The Crash and Burn Scenario


On the American Prospect’s website, David J. Garrow wonders aloud if the biggest obstacle in the path of Harriet Miers isn’t John Roberts. Miers, Garrow writes, is no less qualified (on paper, anyhow) than quite a few justices who have served in recent decades. But she will come to the Judiciary Committee hearings on the heels of one of the most able fencers in living memory. Roberts proved so adept in answering questions before the Committee that he left no one in any doubt that on the subject of constitutional law, he knew more than any five other people in the room put together–senators, staffers, you name ‘em. (Okay, so maybe this doesn’t seem that tall an order if you listened to some of the senators’ questions.)

Miers could come through this just fine. Garrow reminds us that 15 years ago, there were doubts about David Souter:

“Virtually no one, aside from Souter’s personal friends in New Hampshire, had any great confidence that the unknown nominee would impress, or indeed wow, dubious and ambivalent senators. Yet within the first two days of Souter’s testimony, it became clear to the vast majority of onlookers, and senators, that Souter possessed the intellectual acumen and thoughtfulness expected of a justice.”

(I’d agree with that assessment entirely, with the caveat that after Souter’s hearings I was more worried than before that on the merits of most constitutional questions, he’d turn out just as badly as he has done, and that Bush the elder had chosen unwisely. But for brains on the current Court, he is the left’s best match for Scalia.)

I agree too with this prediction by Garrow:

“[I]t’s unlikely that the fate of this nomination will be any clearer the day before the hearings begin than it is now. Instead, everything — or almost everything — will hinge on Miers’ performance before the committee. Once those hearings begin, everyone will know in a matter of hours whether or not she’ll be confirmed. . . . She will either succeed, like Souter and Roberts, or she will crash and burn.”

I’m tempted to start an office pool.


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