I have waited over two weeks to post about President Bush's nomination of Harriet Miers for several reasons. I was disappointed that Bush did not pick someone with an established constitutionalist view, I was not familiar with Miers, and my personal time has been scarce. Since the nomination, I have learned more about Miers and I have had time to think about the pros and cons of this nomination. I've classified my observations into the good, the bad, and the ugly.

The Good

I find it refreshing that Ms. Miers is not a typical nominee. Unlike most leaders in Washington, whether executive, legislative, or judicial, Miers can hardly be called an elitist who went to a politically correct university. She went to Southern Methodist University where she earned a bachelor's in math before going on to pick up her law degree. SMU is a solid university, neither exceptionally great nor exceptionally poor.

I also see the advantages in appointing a non-judge to the Supreme Court. One of the problems with our current crop of legislators is that too many of them are lawyers. In a country that almost worships diversity, we certainly do not have a diverse set of skills in Congress. The Supreme Court does not need as much diversity as the Legislative branch, but some diversity is a good thing. This is hardly a novel opinion. The late Chief Justice William Rehnquist strongly held this opinion as well as many others. Among this number are a fair number of presidents who previously nominated others without judicial experience.

From most accounts, Ms. Miers is a strict constitutionalist. This should please all except those on the left who depend upon judicial activist to create laws that would never be approved by legislators seeking reelection. Despite my knee-jerk cynicism that springs forth whenever a politician says Trust me, I do trust and believe the President Bush has nominated someone who he believes will be a thoughtful and solid conservative vote. Bush has known Miers for decades and she is an evangelical Christian. As such, it is reasonable to assume she will do her best to interpret the constitution as it was written. If confirmed, I expect she would do a good job – hopefully better than some of the nominations of President Bush, Sr. (Souter) and President Reagan (O'Conner, Kennedy).

The Bad

She is sixty years old. As long as these are lifetime appointments, why not pick someone between 45 and 50 years of age? No one knows what the future holds, but the odds are that someone 10- to 15-years younger than Miers will live 10- to 15-years longer than Miers. Since no one knows what party will hold the presidency in the future, the smart play is to pick a younger judge.

Miers has never married and never had kids. I like to tease my wife (a staunch Republican vs. my conservative independence) that women are the reason why Clinton was twice elected president. In general, men are more politically conservative than women. However when you look at the details, you learn that men tend to more conservative than single women. Married women, slowly change from liberal voters to conservative voters. This metamorphosis from a liberal caterpillar to a conservative butterfly is accelerated with kids. Miers has never had this experience. Perhaps I'm overstating the case, but I would feel better about this nomination if Miers had children who would have to live with the consequences of her decisions.

However, neither Miers' age nor her spinsterhood bother me nearly as much as President Bush refusing another chance to fight for what is right. I understand that he may not have faith in some senators to support him if he nominated a conservative lightening rod. However, he should have tried first and then nominate a stealth candidate if he failed. But we elected conservatives to fight for us, not give up without a try. In addition, this was just bad politics. If Bush had nominated a very conservative judge, he would have encouraged his base and divided the Democrats. Instead, by attempting to avoid a fight with the Democrats, he inadvertently picked a fight with his base and encouraged his political enemies. This is no exaggeration – if anything, I grossly understate the case. For example, the Wall Street Journal's conservative columnists have been blasting the Miers nomination for two weeks. Now other conservatives are returning fire at the "elite" at the WSJ. These comments, published at the WSJ, are obviously more polite than the discussions going on in the blogosphere. The Democrats must be laughing themselves silly over the Republican infighting as they wonder how many Senate seats they might win in 2006 as disgruntled Republicans stay home.

I am also concerned that we have to depend upon President Bush's judgment without a supporting and consistent paper trail to support Bush's opinion. As I stated earlier, I believe Bush has the best intentions, but he is as human (flawed) as the rest of us and I fear he may be making a mistake here. We should not have to trust that Bush is making the right decision, we should be able to look at the nominee's record and easily draw our own conclusions.

The Ugly

This nomination is cronyism by any definition of the term. We should not be surprised by this human behavior as the ability to reward friends is one of the reasons why people are attracted to politics. However, no matter how many politicians do this, it is not right. The best person for the job should be nominated, not the person with the best connection to the president. This problem may be slightly mitigated by Bush's concern that he not accidentally appoint a left-wing liberal. After all, after decades of working together Bush should know how Miers thinks. This does not make cronyism right, but I can understand Bush privately deciding this is the lesser of two evils.

The ugliest part of nominating Miers is the disincentive it sends to brilliant conservatives to be honest. Bush is sending a clear message to all brilliant legal conservatives who have any ambition to be considered for the Supreme Court that they had better hide their true feelings for decades. Even Roberts, an undisputedly brilliant legal scholar, did not have the conservative paper trail of his equally brilliant conservatives contemporaries who have more openly stated their beliefs (or perhaps have simply had years of judicial experience in which their views have become obvious). It seems clear that Bush is not willing to pick a conservative with established credentials.

Bush's refusal to engage in an open fight with liberals over the role of the Supreme Court seems cowardly, unfair, and harmful. Bush's refusal to nominate an established conservative avoided a fight with the liberal wing of the Democratic party has caused a major rift within his own party (and Bush's misreading of how this situation would unfold is another sign of the problems he is having). This is unfair to the conservatives who have worked for decades to build a majority in the Senate, the House, and elect a Republican president so the courts could be brought under control. This is unfair to the left, who deserves an honest look at the nomination even if they would oppose it. Hopefully, Bush will withdraw the nomination (or use a face-saving gesture and change her nomination to that of a lesser court to give Miers some judicial experience). Otherwise, many of us conservatives will be twisting in the wind, wondering if we should ask our senators to support or oppose the nomination. I am trying to keep an open mind about Miers until I see what she says at the confirmation hearings. However, unless she changes my current leanings, I will probably be writing my senators and asking them to vote no on Miers.

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