Tuesday, October 11, 2005

The Winter of Their Discontent

If politics breeds strange bedfellows, then Supreme Court nominations - or at least one specific nomination - seems to be breeding the stangest alliance between liberals and conservatives yet. Both sides hate the nomination of Harriet Miers for pretty much the same reason: nobody knows her views on the important and controversial issues of abortion, homosexual rights, and women's rights. Both sides view her as a stealth candidate and nobody trusts George Bush's judgment anymore.

In the wake of the scandal over cronyism, neither the President's opponents nor his allies trust his choices to be qualified for the positions to which they are nominated. Michael Brown was only the most egregious example of Bush's propensity to pick his pals based more on their loyalty to him than on their competence for their jobs.

Certainly that could be said about Ms. Miers. It's not that people question her basic good intentions or even her intelligence or competence as an attorney. However, she has no judicial experience. And worse than that, she has no experience practicing constitutional law.

A nominee could get by with limited experience on the bench, as John Roberts just did. However, it's more damaging when none of that candidate's practice, even as a lawyer, has been in constitutional law. Chief Justice Roberts, while only serving as a judge for a few years, had an extensive career dealing with constitutional questions, both as part of the Reagan inner circle and in private practice, where he, at least, argued cases before the Supreme Court. It didn't hurt, either, that he once served as Chief Justice William Rehnquist's law clerk.

On the other hand, Harriet Miers was the first woman head of the Texas Bar and she practiced corporate law. Her only qualification for this nomination seems to be her loyalty to the Bush Administration. She just has not had the exposure to constitutional law to qualify to become a Supreme Court judge. This is, after all, a lifetime appointment to the highest court in the land.

But the worst thing about this nomination is that the Bush Administration is attempting to persuade its conservative base to embrace this nominee by making the argument that Miers would vote the way they like because of her membership in an Evangelical Christian church. They are using a wink and a nod to reassure their base that she is "one of them."

And most serious conservatives, both within and outside the Evangelical wing of the conservative movement, hate that tactic.

They recognize that basing a nomination on the candidate's personal religion rather than known conservative credentials is a horrible tactic. For years they've argued that a nominee's religion or personal views should be irrelevant. All that should matter is the nominee's judicial philosophy. Serious conservatives are looking for judges who embrace their judicial philosophy of strict constructionism, which means attempting to interpret the Constitution narrowly and by what they believe would be the original intent of the its founders.

Conservatives believe that the right to abortion should not be decided by the courts but by state legislatures. For this reason, they feel that in Roe v Wade, the Supreme Court overstepped its authority. That is the official reason they want to to see Roe overturned. Ok, so in truth, most of them just happen to be pro-life too. But it's the judicial philosophy that they state as their official reason for opposing Roe v Wade, not their personal religious or moral views.

Likewise, much of the affirmative action and other civil rights decisions that came from more liberal courts are opposed by these strict constructionists because they oppose activist courts. They believe those decisions should be made by state legislatures not the federal courts.

These conservatives want the debate. They don't want a stealth candidate who will vote their way without understanding the larger philosophical issues. Like their liberal counterparts, many of these people hold sincere ideals and adhere to an ideology which they want to persuade others to embrace. They believe that their movement will grow stronger if they can have a public discussion, and even a public battle, that airs their ideas to the largest number of voters.

Many of the non-Evangelical conservatives, such as Kate O'Beirne, from the National Review, despite their own pro-life credentials, actually don't want to see litmus tests for the court and think that nominating a candidate based on his or her personal religious views is wildly inappropriate. At least, that's what O'Beirne said last Sunday on NBC's Meet the Press.

Indeed, if a Muslim were nominated and promised that all his decisions would be influenced by the Koran and Shari'a law, most Americans would realize that there is a problem here. Likewise, if an Orthodox Jew were nominated and swore that his allegiance to Torah would be the basis of all his judgments, non-Jews would understandably be concerned.

It is just as worrisome, in a pluralistic society, to reassure people that because HarrietMiers is a devout Christian, she is qualified to sit on the Supreme Court because she will vote their way. That's not what most conservatives want precisely because they realize how quickly such logic could blow up in their faces.

They believe that a strict constructionist, with a good grasp of consitutional law, who would hold to a narrow interpretation of the Constitution, would be sufficient to move their aims forward, including possibly overturning Roe v Wade. They want the same outcome as Miers might want. But they want a judge who can carefully defend it in a well worded opinion based on secular law not religion.

And although I disagree with the conservatives' strict constructionist views, I respect that they are at least willing to make their arguments to a broad swath of Americans based on secular law rather than on religious tradition.

Of course, both secular conservatives and Evangelicals also fear that because they don't know Miers and she has no paper trail of judicial views, she will turn out to be like Justice David Souter.

Justice Souter was nominated by George HW Bush on the recommendation of his Chief of Staff, John Sunnunu, a former governor of New Hampshire who had impeccable conservative credentials. Souter was an unknown entity, but based on Sunnunu's approval, conservatives embraced him. Souter turned out to be one of the most moderate members of the Supreme Court, often voting with the liberals. Conservatives still haven't forgiven Bush I or Sunnunu for that pick.

And they are very afraid that Harriet Myers will turn out to be a "David Souter in drag," as one Evangelical so delicately put it.

Right now, after years of working on behalf of conservative politicians, and when they finally have the ability to get a truly conservative Supreme Court nominee on the bench, instead, the foot soldiers and true believers of the conservative wing of the Republican Party, are being asked to be content with a nominee with no credentials in constitutional law and no known adherence to strict constructionism. Rather than a nominee they can embrace with heads held high, they are being asked to accept a wink and a nod that Harriet Miers will be a good crony who will vote their way on the bench. The sad thing is that after all this time, Bush and Rove just don't get it at all. Real conservatives want the discussion and the debate about their ideals because they still want their movement to go forward in the public square. They don't want a cheap and hollow political victory. They are not hacks.

And they will spend a very cold winter in their season of discontent and betrayal.