OCT. 3, 2005: MADAME JUSTICE
"You can always count on George W. Bush to get the big ones right."
That line or something like it has consoled conservatives during their periodic bursts of unhappiness with this administration. And by and large it has been true. Oh, there were major mistakes, no doubt about that--prescription drugs, steel quotas, and so on--but it was always possible to rationalize those as forced on the president by grim necessity or some prior campaign promise.
The Miers nomination, though, is an unforced error. Unlike the Roberts nomination, which confirmed the previous balance on the Court, the O'Connor resignation offered an opportunity to change the balance. This is the moment for which the conservative legal movement has been waiting for two decades--two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court. Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either.
The Senate would have confirmed Luttig, Alito, or McConnell. It certainly would have confirmed a Senator Mitch McConnell or a Senator Jon Kyl, had the president felt even a little nervous about the ultimate vote.
There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?
I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left. This is a chance that may never occur again: a decisive vacancy on the court, a conservative president, a 55-seat Republican majority, a large bench of brilliant and superbly credentialed conservative jurists ... and what has been done with the opportunity?
I am not saying that Harriet Miers is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.
There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence.
The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today.
Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.
Conservatives have expressed unhappiness with the nomination of Julie Myers for the top immigration-enforcement slot, but there are dozens and maybe hundreds of similarly troubling choices, from the Cabinet on down.
Again and again, George Bush has announced bold visionary policies--and again and again he has entrusted the execution of those policies to people who do not believe in them or even understand them. This is most conspicuously true in foreign policy, but it has been true in domestic policy as well. The result: the voice is the voice of Reagan, but too often the hands are the hands of George HW Bush.
Or worse. George H. W. Bush made his bad appointments in the name of replacing Reaganite "ideology" with moderate Republican "competence." He didn't live up to his own billing, but you can understand his intentions. But the younger Bush has based his personnel decisions upon a network of personal connections in which competence does not always play the largest part.
Weak appointments can destroy even the strongest policy. As Stephen Spruiell makes clear in an important article in the current print NR, the Bush administration had committed itself to valuable reforms in the Army Corps of Engineers, reforms that concentrated resources where they were most needed and fought back against Congress's habit of using the Corps for pork-barreling purposes. That excellent policy allowed administration critics to accuse the president of "cutbacks."
It was predictable that such accusations would be made, and because it was predictable, it was therefore essential that the administration prove itself committed to the nation's flood safety by, for example, appointing only the very most visibly capable people to serve at FEMA. The Michael Brown appointment may in the end not prove very much responsible for the damage done to New Orleans. But it sure has wrecked the president's reform agenda at the Corps of Engineers.
Post-Katrina, the Bush administration feels politically vulnerable. As the saying goes, it's "reaching out." I am all for reaching out where it is appropriate. I have repeatedly argued--most recently after the November election--that the Bush administration desperately needs to recast its security policy on a more inclusive basis.
But the Supreme Court is exactly the place where the president should draw the line. The Court will be this president's great lasting conservative domestic legacy. He has chosen to put that legacy at risk by using what may well be his last Supreme Court choice to reward a loyal counselor. But this president, any president, has larger loyalties.
And those to whom he owed those loyalties have reason today to be disappointed and alarmed.