President Bush has nominated White House Counsel Harriet Miers to fill the Supreme Court seat to be vacated by retiring Justice Sandra O'Connor. I've read some things about Ms. Miers that are encouraging, and have read some positive comments from people with whom I personally share social and judicial philosophy. None of that makes me happy about this nomination, however.

The nomination of Ms. Miers is not necessarily bad news, and I don't mean to seem critical of an obviously accomplished lawyer about whom I know next to nothing. The problem is that very few interested people, in my opinion, will find this nomination encouraging. The activist base of the political left will not embrace the nominee; if anything, they will view the failure to nominate another Scalia or Thomas as decisive proof of presidential weakness.

What about everyone else? For those who believe that the trend in American courts has been increasingly in favor of the power of government and increasingly dismissive of the plain meanings of the provisions in the Bill of Rights, the Miers nomination is not good news. For those who are social conservatives and constitutional originalists, who have been on defense for more than three decades, the Miers nomination is not good news. For libertarians and others alarmed at the willingness of federal courts to overrule the will of the people, putting the true meaning of representative government at risk, the Miers nomination is not good news. Again, it's not necessarily bad news, but it isn't good news either. We as a nation are going to have to wait quite a while to find out what Ms. Mier's legacy will be with regard to the health of our Constitution. I'm just not comfortable guessing what that legacy will be.

If you agree with me that the Constitution has taken a beating lately, you might share my unease. Here's one very recent example. The McConnel decision from December of 2003 rendered the First Amendment meaningless at worst and fungible at best, placing the right to broadcast facts and opinions about those in power squarely under the control of the FEC. Here's another example, even more recent. Just this past June the Kelo decision rewrote the meaning of the words "public use" in the eminent domain clause and stripped absolutely everyone of any real right of ownership of private property. I could list many more relevant examples of destructive Supreme Court jurisprudence, but those two examples should be enough: without solid and healthy rights to political speech and private property, I suggest that we would have no rights worth speaking of.

This situation, in the minds of many Americans, is a crisis. I would compare this moment in history, if you will indulge me a quick analogy, to the Battle of the Bulge. With the forces of freedom either defeated or thrown off the continent, and Europe under the umbrella of fascism, the Allies finally got off of strategic defense and finally went on strategic offense with the D-Day landings. Five months later, the enemy struck back with enormous fury, and the Allies were threatened with defeat in the Battle of the Bulge.

Imagine now that Supreme Allied Commander Dwight Eisenhower was choosing what combat leader to send to rescue the beleaguered 101st Airborne at Bastogne. Who should he send to smash the enemy lines and get back on the course to victory? Eisenhower had at his disposal battle-tested generals, senior soldiers who had a track record of reliability; he had giants like "Blood and Guts" Patton, Omar Bradley, and the British Field Marshal Montgomery, just to name the most well known.

If the current judicial crisis is akin to the Battle of the Bulge, and President Bush's choice of Supreme Court nominee can be compared to Eisenhower's decision, then what we just got in the nomination of Ms. Miers is as if General Eisenhower forgot all about his supply of tested and hardened generals and instead named 1st Lieutenant McSlappy, his staff officer in charge of scheduling, to lead the 3rd Army into Bastogne.

I mean no disrespect to either the President or to Ms. Miers. Time will tell, and I stand by to be proven wrong.