On overreaction to the president's Supreme Court nomination.
Michael Ubaldi, October 11, 2005.
All Harriet Miers needed to do was to step forward! Were the terms "crony" and "stealth candidate" registered trademarks, their respective owners could retire on royalties collected in the month of October. Justice David Souter can reflect on the privilege to hear and read his name as one most taken in vain — and perhaps the first neologized — since Robert Bork.
Critics asking "What were you thinking?" have meant it as a rhetorical accusation, not as an inquiry that would grant President Bush the benefit of a) A broad appointment strategy to which critics may not be privy; and, b) Nearly five years spent placing, at no small cost to political capital, judicial traditionalists on federal courts. When a president — a creature of habit — who usually zigs decides to zag, he is less likely to have changed the destination than to have altered the route.
Back in July, the president announced his interest in a Supreme Court justice with legal experience solely from the public side of the bench while senators in and beyond the Judiciary Committee — none of them allies, from Republican Arlen Specter to Democrats Patrick Leahy and Harry Reid — spoke of the idea warmly. From which side the suggestion arose is unclear; most accounts reported a loose mutual agreement, the product of closed meetings between the White House and the Senate. The request for a non-judge was reasonable enough: present circumstance called for historical fact and we learned or were reminded that about two-fifths of high court justices had never before swung a gavel. One might expect that President Bush would attempt to both meet the political ante and secure the interests of his administration and party — experience, intelligence, discipline, familiarity; enter Harriet Miers, one of the lawyers who the president most closely knows.
Harriet Miers will not meet Capitol Hill scrutiny until the end of the month — so without Miers in the flesh, opinionists have caricatured her in advance. In terms of politics, some conclude that a sorority here and statement there might add up to David Souter or Sandra Day O'Connor. Dr. James Dobson of Focus on the Family disagrees — intrinsic to her evangelical Christian faith is integrity, he argues.
Judges do not, strictly speaking, "vote." They rule. If a robed legislator is what we do not want, politics should be mostly irrelevant. I myself would be supportive of a justice who believes that abortion is acceptable contraception (a definition I strongly oppose) but, when on the subject of rights, will rule that the electorate's right is to circulate a petition or elect a legislature to mitigate or outlaw the practice. Likewise, an evangelical without originalist guidance will not challenge unconstitutional law. So in principle, what good are politics? If a nominee insists that propriety demands a burnt offering of cattle to Odin every other Wednesday — yet maintains that "right" pertains to majoritarian empowerment consistent with the Constitution as written — he is welcome on the court.
Another caricature is Harriet as novitiate. Decent, say opponents, but not as good as could be; whereupon subtle implications are made as to the refined practice of justice. Good Heavens. Which jurisprudential phenom must be summoned to argue, in three hundred words or less, why the 1992 Planned Parenthood v. Casey assertion that "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life" — operatively, in defiance of popular will and Constitutional authority — is of an intellectual extemporaneity otherwise found in Cole Porter's rhapsody "You're the Top"? You are a Bendel bonnet; a Shakespeare sonnet. And Mickey Mouse. How? Penumbras.
Contra Charles Krauthammer, who on Friday demanded Harriet Miers' withdrawal, a jurist using the Constitution as drafting paper for his own architecture is engaged in a notional practice "steeped" in things other than "scholarship." The trouble with the Supreme Court is that brilliant minds are increasingly responsible for silly ideas, enough of them to build majority rulings. For appointment, one had best consider the value of adherence to the rule of law over pedigree.
But still! critics say. Toss the deal for non-judge nominations aside. Why not, instead of Miers, one of the familiar names of originalist justices whose rulings, associations and statements send the likes of Ralph Neas for a bottle of antacid? This is where the Bush choice is incomprehensible should one refuse optimistic speculation, and appealing — even laudable — should one consider it.
If ideological control over the judicial branch is war, there is the danger of hasty deployment. John Bolton, Ambassador to the United Nations, did not intend to take office for life — and thanks to the Senate as composed, he was forced to settle for an interim appointment. Trading Sandra Day O'Connor for, say, Janice Rogers Brown would yield a significantly rightward turn of the court; but not an incredible one. There would undoubtedly be a fight, and a filibuster to check majority support, and President Bush would entrust legislators who have so far refused to shrink their estate to accommodate the White House.
Imagine the Oval Office briefing when it is perhaps learned months from now that one of the four leftist justices will retire, in the wake of an appointment sharing the notoriety of Clarence Thomas' or — worse — Robert Bork's. Senators may not be willing to risk their standing, in spite of the superior argument, to follow Brown with another originalist or traditionalist. Democrats would demand remuneration: Ginsberg for Ginsberg, Stevens for Stevens. If the left had successfully defeated Brown, forcing a second and less strident nominee, Democrats would be practically guaranteed a leftward pick.
Such an unpleasant scenario could be avoided by investing in public esteem and frustrating leftist opposition. It is more likely that two courteous confirmation proceedings will benefit Bush, not the Democratic Party. Staffing the federal bench is work for the executive branch, White House selections a picture of a sitting president's judgment and confirmation an approval thereof. A senator who votes "Aye," then, does so in applause of the president's wisdom and not his own. Polls taken before and after the Senate confirmation of John Roberts reveal senators neither conferred authority in a selection that is not theirs, nor politically rewarded for choosing not to prevent the president from carrying out his task.
Recall that Democrats made clear they were prepared to stand against an originalist. Instead, there is Harriet Miers. The left cannot be heard over the roar of the punditry right; it is still and almost silent for the moment. As a feint, a non-controversial appointee could very well throw the left, eager for pugilism, off-balance: swing at Miers with the intended haymaker and miss, or hesitate and fall out of rhythm. After Roberts and Miers, replacing an activist with Janice Rogers Brown would cast an indomitably originalist court; it would be the fight worth having. Even as speculation, it makes more sense than "White House, non compos mentis."
This is not to say that Miers is better politics than policy. Americans may learn that the competent are every bit as productive as the eminent. For this nominee's competence we can look to televised hearings. Conducted responsibly, the Senate Judiciary Committee's interview of Harriet Miers will be the most substantive conversation with a legal mind in years.
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