I Agree with Bork!

10/13/2005 06:23 pm ET | Updated May 25, 2011

Robert Bork and I don't agree on much, but we do agree on Harriet Miers: She is not qualified to serve on the Supreme Court of the United States.

Bork has described the Miers nomination as a "slap in the face" to conservatives. But it is worse than that. It is a slap in the face to women, to the Court, and to the American people.

The politics of this nomination seems to have everyone in Washington spinning in circles. Conservatives, who only a month ago proclaimed that senators should not oppose a Supreme Court nominee "merely" because of a disagreement over ideology, furiously oppose Miers on the ground that the president has betrayed his committment to transform the Court in the Federalist Society image.

Liberals, who should oppose Miers because of her patent lack of qualifications, sit on their hands, relishing the internal Republican fireworks. They are paralyzed by the fear that if they join the right-wingers in defeating Miers, the president will then saddle them a more qualified and much more rigidly predictable conservative in her place.

What to do? For knee-jerk conservatives, this is easy: Oppose Miers and pressure the president to correct the error of his ways. For knee-jerk liberals, this is easy, as well: Abandon all commitment to principle and support Miers as a (possibly) rare stroke of "good luck." After all, they say, an unqualified conservative is better than a qualified right-wing ideologue. For principled moderates of both the left and the right, this is also easy: Oppose Miers as unqualified, and live to fight another day.

What will happen if a coalition of right-wing conservatives and principled moderates defeats the Miers nomination? Personally, I'd suggest Bush nominate someone someone like David Tatel of the D.C. Circuit or Dean Elena Kagan of the Harvard Law School. But, alas, Bush is not likely to consult me.

This isn't to say Bush couldn't find common ground, though. Once Miers withdraws or is defeated, Bush should come back with a highly qualified conservative -- someone who generally reflects the views of those who elected him, but who will also be an open-minded justice of real intellectual distinction. It's not as if such candidates are hard to come by. John Roberts was one. Others I would commend to the President includeI Maureen Mahoney, a conservative lawyer with a sterling record of achievement in both public service and private practice; Judge Deanell Tacha of the Tenth Circuit, a first-rate appellate judge who was appointed by President Reagan; Judge J. Harvie Wilkinson of the Fourth Circuit, a former journalist and law professor with an excellent record as a federal judge; and Judge Michael McConnell of the Tenth Circuit, one of the nation's leading constitutional scholars and a brilliant lawyer and judge.

I suspect even Robert Bork and I could agree on them, as well as on Harriet Miers.