Flypaper, Miers and Bainbridge

Prof. Bainbridge has been on the warparth against Harriet Miers over the last few days.  He has many objections, but a few come up again and again:

1. She doesn't support the Federalist Society;
2. She will vote like O'Connor on affirmative action;
3. She isn't "qualified";
4. Her confirmation battle won't allow conservatives their armaggedon.

I am only sensationalizing that last point a bit for emphasis.  It sort of reminds me of the now-famous "flypaper" justification of the Iraq war.   As you may recall, the argument goes something like this: when confronted by a shadowy and wily enemy force, the best solution is to send your troops out into the field and allow them - and not your civilian population - to become targets.  When the enemy attacks, you kill them.

Similarly, some conservatives have long bemoaned their inability to win the fight against the vast and diffuse liberalism of the bar and legal academy.  They've had tactical victories (Lopez/Morrison, the 11th Amendment cases; Vouchers) but in the long term they are losing the war (Raich, Casey, Atkins, Lawrence).  Despite vast disparities in force (Republican presidents have appointed 7 of the 9 members of the court) very few of the movement's ultimate goals are in immediate view.  Now, here is a chance to take the fight into the open in a fairly monumental way.  Had the President not nominated Miers, conservatives imagine a confrontation between liberal champions (Biden! Schumer! Oh My!) and conservative paladins (Luttig! Rogers Brown! Alito!).  The inevitable result would be a transformative victory.

What is at stake?  Bainbridge endorses the following except from Daniel Henninger's column:

For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.

Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.

If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas.

To recap.  Conservatives believe that the American people would reject Griswold and the post-New Deal conception of federal power and choose a vision of the Constitution that "devolves power back to the states".   They also believe that rising lawyers and law students, seeing that you can be both a movement conservative and a Supreme Court Justice, would convert to the cause.  And they are bitterly disappointed that the fight has been postponed.

It is an interesting theory.  Is it as flawed as the original flypaper thesis itself?