Where do I stand? To be honest, I haven’t a clue. A vacancy comes up on the Supreme Court and for a month or so every columnist is expected to be an expert on the jurisprudence of a couple of dozen legal types he’d never previously heard of. I had some chit-chat on the nominations a few weeks back with National Review’s Kate O’Beirne and the former solicitor-general (and rejected Supreme Court nominee) Robert Bork. I did my best to keep my end up. There were two Ediths being touted as nominees back in the summer — one Edith was regarded as sound, the other as wobbly — and I pretended I was on top of which one was which, though right now I have absolutely no recollection. Judge Bork knew his lawyers, obviously, but I’m not sure how many of the rest of us do. ‘I like that black woman,’ said the guy who came to change the antifreeze in my heating pipes on Tuesday. He meant Janice Rogers Brown: strong conservative, but black and female and thus less easily Borkable by the Senate Democrats. But ‘I like that black woman’ is not necessarily any less expert than most of the commentary in this field.
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For what it’s worth, my sense is that Harriet Miers will be, case by case, a more reliable vote against leftist judicial activism than her mercurial predecessor, Sandra Day O’Connor. Why do I say this? Well, she’s a strong supporter of the right to bear arms. The great Second Amendment expert Dave Kopel says you have to go back to Louis Brandeis 90 years ago to find a Supreme Court justice whose pre-nomination writings extol gun rights as fulsomely as Miss Miers. According to an old boyfriend, Judge Nathan Hecht of the Texas Supreme Court, she packs heat — a Smith & Wesson .45 — which I can say with certainty the other lady justice, the far-left Ruth Bader Ginsberg, never has. She is also very opposed to abortion, and a generous contributor to pro-life groups.
In other words, what seems to be emerging is a woman Bush responds to as a fellow cultural conservative and evangelical conservative (she’s a born-again Christian) rather than as a judicial conservative — a label Judge Bork dislikes, preferring quite correctly that we distinguish judges not as conservative or liberal but as either originalists or judicial activists. I find it hard to discuss Harriet Miers seriously in those terms, but on balance she seems likely to vote the right way for whatever reasons. She’s thus another representative of Bush and Karl Rove’s belief in incrementalism — that the Republican majority can be made a permanent feature of the landscape if you build it one small brick at a time. Miss Miers is, at best, such a brick, at a time when conservatives were hoping Bush would drop a huge granite block on the court. But, given that she started out as a Democrat and has been on the receiving end of the partisan attacks on the administration for five years, she seems less likely than any detached effete legal scholar to be prone to the remorseless drift to the Left that happens to Republican Supreme Court nominees.
What he said.
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