Something that's struck me in the past two days is the difficulty the administration has had in fighting one fire about the Miers nomination without adding fuel to the other. The first is the "Souter problem," the fact that a lot of the (especially social) conservative base cares deeply about judicial appointments, care for reasons that are almost entirely about outcomes (will Roe be reversed or not?-- see Jonah Goldberg), and care in ways that leave them deeply distrustful of "stealth candidates" appointed by Republican presidents.
The second is the "crony-too-far" problem-- the sense (expressed very well in both Randy Barnett's WSJ op-ed on cronyism and George Will's column) that Miers is unqualified for the post of Supreme Court justice and that she has been chosen primarily because of her closeness to President Bush.
The difficulty is that, in order to answer the first set of critics, the administration and its allies are resorting to saying: "Trust us; the President knows her really well, and she's a real right-winger not a potential Souter." But that only emphasizes the fact that she's an insider pick. The more they say "trust us," the more skeptics of the second sort will say, "We shouldn't have to take Supreme Court nominations on faith, and the fact that George W. Bush is the guy who has all this secret knowledge about her makes us more worried, not less."
And so Reginald Brown's defense of Miers quoted by Orin Kerr over at the Conspiracy, asks us to believe that Bush approached the appointment seriously, because "This is a man who almost lost the Presidency because of the liberal activism of the Florida Supreme Court"-- the very last issue that should be brought up to reassure those who are worried about cronyism threatening judicial independence. It goes on to say,
Judging takes work, but the folks who think "constitutional reasoning" is a talent requiring divination, intense effort and years of monastic study are the same folks who will inevitably give you "Lemon tests," balancing formulas, "penumbras" and concurrences that make your head spin. The President sees through that mumbo jumbo and recognizes that good Justices are the ones who focus on the Constitution’s text, structure and history and who call balls and strikes. Bush is in favor of demystifying the Court and the Miers choice is part of that effort.[...]She also happens to be a gun-toting evangelical who gives money to pro-life organizations and spends her free time taking care of her elderly mom. [...] Miers lives in the real world. She knows what the practical impact of a Kelo decision will be and that the laws of Nigeria and the European Union aren’t terribly relevant to U.S. constitutional analysis. And as important, the people that she hangs out with don’t give a hoot what Linda Greenhouse and the New York Times think.
The anti-liberal-judicial-elitism card is cute, but only aggravates the cronyism worries. John Cornyn's WSJ op-ed is much the same.
The NYT has so far been presenting conservative worry about Miers as being mainly Type 1. But, in the blogosphere and the conservative legal academy and intelligentsia, it's much more Type 2. And the more defenses we see of Miers that say, "She don't go in for that fancy hifalutin law stuff," the worse the Type 2 worry will get, for at least two reasons. One is the slap-in-the-face aspect. Many brilliant conservative lawyers dedicated to moving the law in a conservative direction have spent a generation excelling in the legal academy and on the bench by making important, impressive arguments about constitutional law. The Miers pick, and this defense of the Miers pick, is an open insult to those scholars and judges: "We don't like your kind, with your fancy law degrees and all; you're just like the libruls, because you think constitutional law requires hard intellectual work." That's tactically stupid, a deeply demoralizing message to send to those whose intellectual work has done so much and holds the promise to do more.
But the Type 2 worry isn't just about amour propre. People who hold it ctually believe-- rightly-- that this appointment is wrong, that friendship with the president is not a qualification for the Supreme Court, that constitutional law does require hard intellectual work that requires practice and thought in advance, and that the absence of any of the convetnional qualifications is something to at least worry about. The more the administration defends against Type 1 by saying "Miers ain't one of them fancy elite types with their heads full of fancy law-larning," the more impossible it becomes to defend against Type 2.