2. Miers and the outsider nominee

The worst aspect of the Harriet Miers fiasco is that it discredits the whole idea of selecting a Supreme Court nominee from any pool of potential candidates other than federal appeals judges.    We need justices from other spheres of life.

In an 1820 letter, Jefferson wrote: "Our judges are as honest as other men, and not more so.  They have, with others, the same passions for party, for power, and the privilege of their corps."  Any conscientious person who has spent years or decades of his or her life serving an institution will come to identify with that institution.  It's natural for people to want to advance the interests of colleagues they respect.  A federal appeals court judge elevated to the Supreme Court will tend to use his or her new power to aggrandize federal appeals courts.  They will have, as Jefferson said, a passion for the privileges of their corps.

I don't think this is a bad thing, in and of itself.  I would rather have a Supreme Court justice capable of experiencing normal emotions than one who is not.  The problem occurs when the entire Supreme Court bench is composed of former federal appeals court judges.  Stevens, Scalia, Kennedy, Souter, Thomas, Ginsburg, Breyer, Roberts...  The sole remaining Supreme Court justice who did not serve on a federal appeals court is the soon-to-be-departed Sandra Day O'Connor.  This uniformity guarantees a real poverty of practical experience. 

Only Souter and O'Connor among the current justices ever served as trial judges.  Scalia and Thomas, respectively an academic and bureaucrat before becoming appeals court judges,  each spent only a few years at the beginning of their careers in the actual practice of law.   (No wonder they're so certain about everything.)  Only Souter ever practiced in the area of criminal law.  The justices select as their clerks  fledgling lawyers just out of law school.  In an entirely literal sense, the justices don't know what they're doing when they make decisions about trial practice and the criminal law.  How could they?

Bush's idea of nominating someone who has never served as a judge was a good one.  The problem was that Miers was so obviously, even pathetically, not ready for prime time.  (And then she was served so poorly by the President's political apparatus and her wink-winking friends from Texas.)   So Bush, like Clinton before him, like Reagan following the Bork and Douglas Ginsburg disasters, took the path of least resistance and nominated an appellate judge who had already been confirmed by the Senate.  Future presidents will be that much less likely to risk humiliation with an unconventional pick.  More's the pity.