A Chequer-Board of Nights and Days

Let us be clear: The decision by Harriet Miers to withdraw is not due to any conflict over documents. The White House has been in such conflicts before and has shown no compunction about fighting them out. (And just so that my cards are on the table, I would have supported the White House's decision to fight for privileged documents to remain privileged even as I opposed the nomination of Harriet Miers to the Supreme Court.) Because I like to believe the best about human nature, I choose to believe that Ms. Miers herself went to the White House and said that her troubled nomination was not worth the political cost it was inflicting on a President to whom she is (very) loyal. Of course, it is entirely possible--and perhaps even probable--that Ms. Miers was pushed to the side, but we choose to be magnanimous today.

In any event, let us hope that this sorry episode will not be repeated. Let us hope that there is some actual vetting of the next nominee. And let us hope that the next nominee is one we can brag on and brag about as possessing the talent, the temperament and the necessary views of jurisprudence that would merit a lifetime tenure on the Supreme Court. "Justice McConnell," "Justice Luttig" and "Justice Brown" would be examples of very good picks. Perhaps we could take those ideas for a spin and see what happens.

Co-blogger Britt need not worry--assuming he worries in the first place--about the prospect of a Justice Posner. Posner is too wedded to the concept of law and economics to escape suspicious glances from Senators and while he is a brilliant intellect, too many of his theories are presumed to be outside of the mainstream (note that I don't necessarily share that presumption, but perception is reality). On the upside, however, the absence of a Justice Posner on the Court still allows for the presence of a Judge Posner in the Blogosphere.