Bench Memos

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I respect Matt’s prudential judgment that it is too early to make a call on whether to support or oppose the Miers nomination. Indeed, I may end up making the same prudential judgment—to reserve judgment—that Matt has made. My narrow point is that I think the time for cathartic complaining has passed and the time for trying to make a prudential judgment (always provisional, of course) to support or oppose the nomination has arrived. If some folks make a considered prudential judgment that they should oppose the Miers nomination or call for the President to withdraw the nomination, I will listen to their reasons and be ready to respect their judgment, even if I decide not to share it. Similarly, if other folks make a considered prudential judgment to support the nomination, I will listen to their reasons and be ready to respect their judgment—again, even if I conclude that I am not able to share it.

In this regard, I would like to emphasize that the President and his advisers bear full responsibility (whether you view it as credit or blame) for the Miers nomination. I do not see how it is fair to blame, much less to call into question the motives of, those on the outside—like Leonard Leo and Jay Sekulow—who were not responsible for the Miers nomination but who made the after-the-fact prudential judgment to support it. I am confident that both Leonard and Jay wanted a nomination of an established judicial conservative that would trigger a serious public battle over judicial philosophy. They didn’t get it. Instead, they got the nomination of someone they have come to know and trust as a judicial conservative, but someone who is virtually unknown to the rest of us. They have made the judgment, based on the information available to them, that she will be a fine justice, and I am hopeful that they (and others I trust who likewise know Miers in a way that I don’t) are right. Others, acting on other information, may be far more skeptical on the question. Such skepticism is entirely understandable, but it should not be transmuted into attacks on Leonard’s or Jay’s integrity.

Similarly, I am dismayed by the reckless rumormongering and innuendo that are surrounding this nomination. That, alas, is to some degree a natural result of a nomination of someone who lacks a significant public record. But it doesn’t serve the process of forming an accurate judgment on the nomination, nor is it fair to Miers.


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