Richard Garnett, over at Bench Memo’s, makes excellent points. There is real reason to believe that Harriet Miers could emerge as a genuinely conservative pick. Yes, like most everyone else, I shiver at the thought that Miers could turn out to be another David Souter–or even another Sandra Day O’Connor. Who can deny that it’s possible? But at this stage, I think it’s far wiser to see the glass as half full.
Jonathan Adler’s piece, “First Monday,” Makes it clear that we’re going to know a great deal about what sort of justice Harriet Miers makes a year from now. I’m not sure I see the good in jumping to conclusions until then. This nomination is a done deal. Why not reap the benefits and hope for the best? The good news is that, if Harriet Miers is what Richard Garnett thinks she is, then we’ll have put her through without a huge confirmation battle. And the president stands to gain in popularity with the center for having avoided a bruising battle.
At this point, conservative perception becomes reality. If we go ballistic now, without any evidence that this was a mistake, then we get a drop in the president’s popularity, and make no difference in who gets onto the court anyway. I think there’s quite a decent chance that Garnett is right about Miers. This could turn into our ultimate stealth triumph. If it’s not–if Miers makes it clear, after a year of what Adler says will be highly revealing decisions, that she is not conservative, then nothing will save the president from the wrath of conservatives. So be it.
But why assume this sort of failure–and do our own side great harm in the process–when there is still every reason to hope–and even believe–that things will not turn out so badly? Don’t get me wrong. I can’t blame folks for grousing–at least for a while. But eventually I think it will become clear that the political logic of the situation calls for cautious optimism. Again, if that turns out to be unjustified, conservative wrath will rightly be unstoppable. But if Miers turns out well, we will have mistakenly shot ourselves in the foot by pulling down the president’s popularity at a critical moment. If it was my pick, I’d have made it differently. But at this point, it is both fair–and politically wise–to give the president the benefit of the doubt.