Holding Our Fire — and our Breath

Paul Mirenghoff argues conservatives must get over their disappointment with the Miers nomination and decide whether she is worth supporting for confirmation.

As the confirmation process unfolds, however, the issue for conservatives no longer will be whether we are disappointed, but rather whether Miers should be confirmed. The question is more than academic–for it is possible that without the support of conservative Senators the nomination will fail. To be sure, some Democrats, including Minority Leader Reid, have made favorable utterances about Miers. However, at her confirmation hearings, Miers almost certainly will not give the sort of assurances on Roe v. Wade that Democrats will demand. And unlike with Roberts, Democrats will not feel constrained by public opinion to vote for Miers–she lacks both Roberts’ record and his charisma. The only pressure Democrats will feel to vote for Miers is the sense that Bush might nominate someone worse from their perspective. But the opportunity to deal Bush a huge defeat, coupled with pressure from the abortion lobby, may prove irresistible. Thus, a coalition of Democrats and conservative Republicans could possibly sink this nomination in what could be the oddest confirmation battle in memory.

Mirenghoff argues that Miers is qualified and (more controversially for this crowd) that there is no basis for rejecting Miers on ideological grounds — indeed, that conservatives should not make ideology a litmus for Senate confirmation. After all, this is the approach most Republicans took to the nominations of Breyer or Ginsburg.

In the case of Harriet Miers, though, we are not even talking about someone in the O’Connor mold–we are talking about someone who might be another O’Connor but is just as likely to vote with Scalia in the vast majority of big cases. In this situation, it seems imprudent to blow up the confirmation process—and possibly the Bush presidency and the Republican party–to block her nomination. Thus, conservative senators should be prepared, barring new and damning information, to vote in favor of Miers. The rest of us should be prepared to hold our breath until we start seeing what she writes.

Jonathan H. Adler — Jonathan H. Adler teaches courses in environmental, administrative, and constitutional law at the Case Western Reserve University School of Law.

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