No doubt this is a very smart and cautious political move by the Administration. But, does that necessarily make it the right or most legally sound move? Perhaps: there is, indeed, precedent for non-judges and professional politicians being appointed to the high court (from Taft in 1921 to Warren in 1953 and even Rehnquist in 1971). And, since we have a conservative President promoting conservative ideals and a strict interpretation of the law to which we are all bound, Article II, Section 2 of the Constitution offers that the President “shall nominate, and by and with the Advice and Consent of the Senate, shall appoint… judges of the Supreme Court.” That's a fairly straightforward mandate that gives no real or objective criteria to go by. An arguable flaw ...
However, we can't see how selecting White House staff simply based on their presumed political stealth through the Senate confirmation process expresses the type of solid legal reasoning we'd expect from any Administration. At least, with Chief Justice Roberts, we could say that he has a seasoned background in Constitutional law; we may disagree with where he might stand on certain issues, but we respect the fact that he is qualified. We don't know what to make of Harriet Miers except to say that she's a less controversial nominee - other than that, can the President demonstrate her qualifications as a Constitutional scholar? Will the Senate perform its duty to protect the Constitution by requiring a high level of Constitutional acumen or defy its oath by confirming safe, politically negotiable nominees? That's a reasonable question. Should we anticipate a pattern of future Presidents with low approval ratings, questionable foreign policies, bad performance metrics and embattled agendas to select Supreme Court nominees that are less controversial?
George Will is on point in the Washington Post today: "It is important that Miers not be confirmed unless, in her 61st year, she suddenly and unexpectedly is found to have hitherto undisclosed interests and talents pertinent to the court's role. Otherwise the sound principle of substantial deference to a president's choice of judicial nominees will dissolve into a rationalization for senatorial abdication of the duty to hold presidents to some standards of seriousness that will prevent them from reducing the Supreme Court to a private plaything useful for fulfilling whims on behalf of friends.
"The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination."