WSJ Editorial: Faith-Based Nomination





If his track record on judges is a guide, Mr. Bush deserves some deference. His appellate nominees have been uniformly solid, and often distinguished. One of those nominees was John Roberts, who at 50 years old is now the Chief Justice. For five years Ms. Miers has been part of the President's judicial-selection committee that promoted those nominees, and for the last year was its chairman.

The fact that Mr. Bush has known Ms. Miers so well and for so long also makes it unlikely that she is another David Souter, who was sold to George H.W. Bush as a "conservative" by Warren Rudman but morphed into a liberal on the bench. Assorted Texans who have more political credibility than Mr. Rudman -- such as state Supreme Court Judge Nathan Hecht -- also speak highly of Ms. Miers as a legal mind and assert confidently that she is a conservative constitutionalist.

And yet the fact remains that on the major legal debates of her time, Ms. Miers has remained largely silent. Perhaps this is because she hasn't had the public opportunity to express her views, but a rational worry is that she doesn't have well-developed opinions about the reach into state prerogatives of the Commerce Clause, the separation of powers, the First Amendment's Establishment Clause, the breadth of the right to privacy, and so on. The lesson of other Republican nominees without such fixed views -- Harry Blackmun, Mr. Souter, Anthony Kennedy -- is that they always drift to the left once they get on the Court....

Is the President sending a message that these distinguished conservatives are too controversial to be nominated for the High Court, even with a Senate containing 55 Republicans? The lesson this nomination in particular will send to younger lawyers is to keep your opinions to yourself, don't join the Federalist Society, and, heaven forbid, never write an op-ed piece. This isn't healthy in a democracy, and in this sense a Supreme Court fight over legal philosophy that ended in a conservative victory would have demonstrated to the left that Borking no longer works.

We will no doubt learn more about Ms. Miers in the coming weeks, and perhaps any doubts will prove groundless. But for now, Mr. Bush is asking his supporters to accept his judgment about his personal lawyer as an act of faith.



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