David Limbaugh on the Miers Nomination

David Limbaugh has some interesting posts on the Harriet Miers nomination.

First, It's Not Elitism, But Constitutional Stewardship:

It is not elitism that is driving the doubters' concerns.

The elitism charge obscures the paramount importance of the Supreme Court to preserving our structure of government and our liberties. We dare not allow ourselves to lose sight of what is at stake with these highly infrequent nominations to the Supreme Court.

Our Constitution's framers ultimately decided on a structure of government that divided powers between national and state governments and among the three branches of the federal government. These discrete, but partially overlapping branches would each check the others from acquiring too much power at the expense of our freedoms.

This structure, along with the limitations on government imposed by the later-added Bill of Rights, was designed to prevent tyranny and maximize the prospect for individual liberties.
---
Conservatives, by advocating the appointment of the best of the best, are not bowing to elitism or snobbery but recognizing the critical importance of justices. Constitutional jurisprudence, while not rocket science, is indeed a scholarly enterprise.

Some have said that as long as a justice votes "correctly," it doesn't make any difference how brilliant he or she is. But Supreme Court justices don't just vote. They analyze, discuss, debate and engage in the art of persuasion.

Most, if not all, of the liberal justices on the Court are intellectual heavyweights. When a vacancy on the Court occurs, the president has a solemn duty to nominate the best and the brightest. He should choose not only strict constructionists, but those who can hold their own against the liberal activist justices who are steadily rewriting the Constitution and removing, brick by brick, its foundation.

What conservative skeptics of the Miers appointment have been saying is that a pool of extraordinary conservative constitutional scholars exists, whose members have proven, through their legal careers, their unique qualifications and fitness for the position. While they don't doubt Miers has excellent character and, perhaps, even superior abilities, they don't see her -- at least at this early stage -- as possessing the optimum background to sit on the Court, compared to so many others.

And the second column, President Bush Must Veer Right, Embrace Conflict:

Most of Miers' skeptics aren't insisting that nominees hail from elite, Ivy League law schools. But many did have their hearts set on one of a fairly small group of eminently qualified judges and lawyers who have, in effect, been in training for this position for years.

That groups consists of people they strongly believe to be originalists precisely because they have established a reputation as just that: unapologetic originalists. They have been unafraid or forced by circumstances to make their judicial philosophy known through their advocacy, scholarly writings, judicial opinions, speeches or otherwise.

The skeptics preferred those whose judicial philosophy is a matter of public record, or readily discernible, without ambiguity, because they are a far safer bet to be originalists than any other possible choices. They're also more likely to resist the pressures that compel some justices -- like Anthony Kennedy -- to "grow" over the years.

The skeptics also believe that since President Bush won re-election and there are 55 GOP senators, it was high time he pick a strong originalist. Sure, that would bring on a "nuclear battle" in the Senate. But they were prepared for that and confident Mr. Bush could win that battle, even with a few defections from the GOP Seven of the tyrannical Gang of 14.

They would welcome that nuclear confrontation, not because they're pugnacious sorts and not because they want to rub Democrats' noses in it. Rather, it's because they believe we're past due for a public debate on the proper constitutional role of the Court.

Above all, they didn't want the president to send a signal with this nomination that he had abandoned his goal of picking a known originalist. Such a surrender could have a deterrent effect on future originalist judges working their way up through the system. It would also send the unmistakable signal that conservatives have unilaterally thrown in the towel over an issue that has motivated their grass roots like no other in the last 30 years.

When President Bush picked Judge Roberts, I was initially concerned that he was sending the signal of surrender then: that known originalists need not apply. Roberts was beyond qualified, but his judicial philosophy remained shrouded in mystery. In time, his early writings provided some comfort. I ended up cautiously optimistic that Roberts would be phenomenal, provided he didn't allow his reverence for stare decisis to outweigh his disdain for clearly unconstitutional precedent. Even after the hearings, however, we still don't know for sure.

With the Miers pick we have, at this point, another stealth candidate -- another conflict-avoidance solution. It appears that President Bush did not want to risk a confirmation fight, which is very disturbing because if he intends to make an impact in the balance of his term, other than in the War on Terror, he must be willing to fight Democrats on social and economic issues as well.