And Live To Fight Another Day...

Discretion is the better part of valor, and Caution is preferable to rash bravery.
Falstaff in King Henry the Fourth, Part One, by William Shakespeare.

"The president has an opportunity now to unite the country. In appointing the next nominee, he must listen to all Americans, not just the far right," said Sen. Edward Kennedy of Massachusetts.

As often happens, Sen. Kennedy has it wrong.

The bona fide far right was fighting for Miers – witness Hugh Hewitt and other partisan conservative commentators. In reality, this nomination was scotched by the more moderate Republicans, and the true conservatives who felt that deliberately appointing a person for a political purpose was wrong (see POST).

During this brou-ha-ha, Hewitt posted a series of questions to fellow conservatives about the nomination. Here are the questions, along with Porcupine’s emailed answers to Mr. Hewitt (and Porcupine's point of view was widely echoed – on the TTLB Miers page, of the blogs weighing in, 70.2% were Opposed, 15.3% were Neutral, and only 14.5% were Supporting)

"Mr. Hewitt - As you requested, I sent you my post on Miers; I would like now to answer your questions as well.

Does George W. Bush deserve any loyalty from his party? From pundits identified with his party? If so, how much and why not more? Mr. Bush absolutely deserves loyalty and thanks from GOP commentators - this is not the same as blind obedience over a matter of principle.

Do Harriett Miers' many accomplishments count for nothing? Indeed not - but are they scholarly? Why the hesitation to nominate a person with a forthright paper trail, and say - this is what we believe.

Does Harriett Miers strike the commentator as a dedicated public servant? Not especially - but that may be displayed during her hearings. ( Later Note: She may well be an outstanding public servant, but there is no way to judge from the outside - which in itself indicates she is doing a good job.)

Why not wait for the hearings to at least begin? Because by then, either her selection or the President's embarrassment will be inevitable. Expressing concern over her lack of judicial writings and experience is not premature.

How important is it that Roe v. Wade/Casey be reversed? Not especially. I would like to see it reversed, and the matter returned to the states where it belongs, but it is not of paramount importance to me. Future rulings on privacy - not related to abortion - concern me much more.

Which five precedents does the commentator think are in most pressing need of reversal? A reexamination of Miranda; a repeal of Kelo; a reexamination of Roe; a clarification of church/state rulings, which seem contradictory; an examination of the free speech restriction on bloggers inherent in McCain-Finegold. (Was this a test?) (Later Note: Mr. Hewitt had strongly implied that many opponents to the Miers nomination were uninformed as to the working of the Court; perhaps he thought we couldn't name five other precedents.)

Does the commentator agree with George Will's assertion of Justice Lewis Powell as the "embodiment of mainstream conservative jurisprudence?" Not especially.

Is a neo-Borking underway which will discredit the conservative cause's defense of its future nominees against similar, future attacks from the left? We would not have this problem if a better - perhaps, say more obviously - qualified candidate had been put forth. The only discredit to the conservative cause is the implication that it is more concerned with piety than intelligence.

What are the political consequences of a defeat of Miers at the hands of a GOP controlled Senate? I am sorry, but the Court is more important than any individual political agenda, and indeed, we need to remember that we want the Court to be above it. We want originalists and interpreters, not unelected legislators, on that bench."

So - there's a snapshot of the debate on the right hand side of the aisle. Sen. Kennedy was not included in our thoughts.

"Let's move on," said Republican Sen. Trent Lott of Mississippi. "In a month, who will remember the name Harriet Miers?"

Well, Senator, the same people who remember Lani Guinier, President Clinton's partisan nominee to the bench who also withdrew. Porcupine is certain that the next nominee will be both a distinguished conservative and a jurist with a strong written record. Porcupine’s personal choice would be Justice Janice Brown.

Sen. Harry Reid of Nevada, who had recommended Miers to the President, said "They want a nominee with a proven record of supporting their skewed goals."

Exactly, Senator. And we have three years to fight for it.