Last night Shelly and I had a great conversation about Supreme Court nominee Harriet Miers. It even got a little heated as we both voiced our opinions, but in the end, it seemed that our opinions only differed slightly. When it all comes down to it, it seems neither of us feels that we know for sure whether Miers would be a good Supreme Court justice.

We also agree that the process has become way too political. There have been a lot of theories floated around about how Miers was the only choice President Bush could have made, what with his low approval ratings and whatnot. A candidate with absolutely no paper trail is more likely to get confirmed than a candidate whose views have been made known. Of course, I wonder if Miers might be so stealth that Bush loses some Republican votes as well.

The problem with the whole process is that, with this Republican president's nominees, the Democratic senators are requiring the candidates to make their views known on key issues. The Democrats will only vote for the candidate if they feel that they agree with him or her. That's not the way it's supposed to be, of course. Democrats are supposed to be quiet and realize that they lost the presidential election, and therefore the nominees aren't going to be people they agree with politically. Just like when Clinton was president, the Republicans were supposed to grin and bear it as Justices Ginsburg and Breyer were put on the court. An ideological criterion is inappropriate.

What is appropriate is for the senators to try to figure out if the candidate is really qualified for the job. While the constitution doesn't require that the Supreme Court justices have previously held a judicial position, it's certainly relevant and helpful experience. And I say that if you're going to stick someone on the court, they'd better have some good experience showing that they are familiar with the history of the court's consitutional decisions, and that they have had a history of thinking about these kinds of things (though what it is that they think is less relevant). Judges, professors, politicians, etc. are the kinds of people who have this kind of experience. And I think that kind of experience needs to be demonstrated before someone gets on the court.

Where Shelly and I ended up diverging in opinion was in terms of presumptions. I say we should presume that a candidate is not qualified until proven qualified; Shelly says we should presume the candidate is qualified until proven unqualified. She said it's just like the presumption of innocence in criminal law--we should give people the benefit of the doubt. I would rather let a guilty person go free than put an innocent person in jail. But I would rather keep a qualified person off the Supreme Court than let an unqualified person on. Thus my presumption of nonqualification.

Chief Justice John Roberts definitely demonstrated his qualification, as he passed what I previously referred to as a huge law school exam on steroids with flying colors (and orally, and without notes). He definitely showed that he knows his stuff and he can do this job. I will anxiously await Miers's hearings, to see if the same holds true for her.

In the meantime, just like Robert Bork changed judicial nominations, making Senators focus more on ideology than qualifications, perhaps the Harriet Miers nomination will undo that. Because her ideology is so unknown, Senators might end up focusing on whether or not she's qualified. In fact, I sincerely believe that if she is not confirmed by the Senate, it will not be because of Democrats disagreeing with her ideology; it will be because of Republicans not thinking she's qualified. And if that happens, it might be a great thing for this country--we might start paying attention to the knowledge, not the politics, of our judges.