Chief Justice Roberts and I may not agree politically. And I may not agree with particular rulings he will make. But I expect and I am certain that I will receive a fidelity to the law itself from his opinions. I do not have that sense about Ms. Miers.

And there is the rub. With his comments the President is telling his base (which includes me)that they need not worry, “I know how she’ll vote,” leaving the Senate to speculate.

If the ends justify the means, then so be it. It just does not sit well with me, especially given the fact that she is obviously not the most qualified person for the job, notwithstanding what the President has said.

Lyle Denniston at SCOTUSBlog analyzes the potentially troubling repercussions of President Bush’s endorsement of Harriet Mier’s constancy: Perhaps entirely sincere in attempting to persuade his conservative political allies that Miers would not become …

But assuming the nomination makes it out of Committee, I think the confirmation process will be rather rapidly forgotten. I mean, who remembers what questions were asked when Justice Scalia was confirmed?

The idea that Miers has given specific assurances about how she would vote is a chilling one, and I can only hope it isn’t true.

But politicians worry only about rulings on abortion and gay rights. Given this orientation toward outcomes only, hearings are likely to devolve into both sides demanding proof of how Miers will rule on those issues, and Miers refusing to provide such proof. There will be some back-room manipulations in which Senators on both sides are told what they want to hear, and in the end, they’ll vote to confirm her without any real inquiry into whether she will be a good Justice in terms of integrity, independence, and intellect. Or am I missing something?

In other words, she’ll have to pay off Bush’s mortgage during the hearings. Of course she’ll decline to answer questions, as Roberts did, because she won’t want to make judicial reps and warranties to members of the committee. But unlike Roberts, she’ll now have to work harder to convince them that she has made no such promises to Bush.

If Bush holds the first note, Vice President Cheney took out a second mortgage when he reassured Rush Limbaugh’s listeners, saying “Trust me”. He said it emphatically, in a way that seemed to convey, “We know *exactly* how she will decide on the key issues that concern you, and you won’t be disappointed.” That implication could cost her more in interest payments than Bush’s statements.

I was struck how Roberts’ testimony included a promise to listen to his colleagues’ opinions, as well as a commitment to try to persuade and work towards a consensus when possible. That seemed consistent with his concept of judicial humility. I don’t think this committee views avowed ideological rigidity as a virtue.

I fear too fear that she was compromised by the blatant appeal to the right the President made. He would not have dared make such claims about Chief Justice Roberts during the confirmation process. He was clearly signalling the faithful that he knows.

“Is this a misreading of what the President was saying on Tuesday?”

Yes, in my humble opinion, it is a misreading. I understood the President to be expressing confidence that Ms. Miers will not drift into the view that the Supreme Court sits as a continuing constitutional convention, with the authority to propose and ratify its own amendments on the pretense of interpreting a “living document.”

This does not in any way imply she will always rule in the administration’s favor. A Justice can very well believe that a government action violates the Constitution as understood at the time of its adoption. In that case, fidelity to originalist principles requires, not forbids, the Justice to vote against the government.

Nor does this view imply that a Justice can never change his or her mind on a question of what the Constitution actually requires. Justice Thomas has changed his view of what the Sixth Amendment jury trial right entails based on further research into what it meant at common law, not because he concluded that the Sentencing Guidelines were inconsistent with the evolving, global, jurisprudential ether. This, too, is entirely consistent with originalist principles.

The view that the President endorsed, and assured us that Ms. Miers also believes, is not only consistent with Marbury v. Madison, it is required by it:

“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.” 1 Cranch, at 176.