“The horror, the horror,” seems to sum up the reaction of many conservatives to the nomination of Harriet Miers to serve on the Supreme Court. One can almost hear the ominous organ of Doors’s keyboardist Ray Manzarek in the background, as Jim Morrison intones, “This is the end.” And it is an end, of sorts–the end of conservative hopes that a Republican president known for bold strokes would put forward a forceful intellect who would help shift the drifting Constitution back toward its moorings. Unlike Colonel Kurtz, conservatives have been traumatized not by an “Apocalypse Now,” but by a slow destruction of constitutional law.
The “Constitution in exile” better be on a pleasant island paradise, because it will have a long stay. For many conservatives the Supreme Court was the issue, the reason for supporting Bush over the years despite misgivings on this issue or that. Decades ago Country Joe MacDonald wailed with absurdist resignation, “And it’s one, two, three, what are we fighting for?”–a question many conservatives are asking themselves today.
The Miers nomination may prove to be a wake-up call so energizing the Republican base that they rise in revolt, scuttling the nomination and demanding that Bush fulfill his promise to name a Scalia or a Thomas. That seemed unlikely at first, but the uprising seems to be gaining surprising momentum. Despite the grumblings, however, the Republican inclination to support the president is strong, and Democrats would be foolish to look a gift horse in the mouth. President Bush has handed liberal democrats a present, although they don’t seem effusive in their appreciation. Miers may deliver the conservative votes that Bush promises, but there is no sign that she has the intellectual depth or sophisticated understanding of the Constitution to seriously challenge the liberal legal mainstream. For that, liberals should be breathing an immense sigh of relief. And while conservatives are appalled, Miers apparently enjoys the support of none other than Senate Minority Leader Harry Reid. Given Reid’s sophisticated evaluations of judicial and presidential competence, what more recommendation could one need?
If this battered ship stays afloat until the hearings, we may be pleasantly surprised, as subterranean-level expectations are easy to exceed. Or then again, we may witness the judicial version of Admiral Stockdale–”Who am I? Why am I here?” Perhaps the Miers hearings will prove oddly inspiring, as a vivid example to our youth that, “You, too, can grow up to be a justice of the Supreme Court.” And who knew that one key to success might be leading the Texas Lottery Commission? How appropriate, since selection for the Court seems to be like a lottery in these post-Bork years.
The Roberts nomination was a refreshing break from this trend, a promising sign that intelligence and accomplishment might still be a qualifiers, not disqualifiers. The Miers nomination disabuses us of that notion. Even Roberts was apparently chosen in part because he had said or written so little. The selection of Miers once again shows the haunting legacy of the Bork debacle–the pathological fear of a paper trail. Although the Roberts nomination showed respect for the Court and the craft of law, he lacked a record of thoughtful contribution to the constitutional dialogue. The air of hopeful anticipation in Washington that the missing element might be supplied by the next nominee was palpable. But apparently intellectual accomplishment is still poison to a potential nominee.
Perhaps President Bush was conflating liberal dominion over constitutional law and activist courts since the New Deal with intellectualism. That is easy to do, given the pervasiveness of liberal ideology in legal scholarship and academia more broadly. It is tempting to blame the root for the branch. If the liberal jurisprudential establishment emerged from elite schools and journals and spoke in large words and grand theory, the thinking might go, it can only be tamed by reaching outside the Washington-New York intelligentsia to let some Texas common sense cut them down to size.
But law, unlike politics, is inescapably an intellectual exercise, and reason is the bedrock of the rule of law. It is about the careful articulation of principles and nuanced applications, made persuasive by a compelling understanding of the constitutional order and the role of courts. Law is not molded simply by the votes of judges and justices, but in the power and cogency of written opinions and the philosophy they express, which become the fodder of law-review articles, commentaries, and conference panels, and eventually permeate the classroom teaching that forms the next generation of judges, lawyers and scholars. To bypass the opportunity to strengthen a conservative intellectual core–an elite–on the Court is not to make it a populist protector of freedom, but to abandon the field to the liberal elite. If the president does not appreciate this, there is no reassurance another nominee would be any better, and Democrats would surely feel more liberated then to jump on any candidate of substance.
The nomination of Harriet Miers is another chapter in the lost promise of the Reagan revolution. From the heady days of the 1980s, there have been so many missteps, perhaps including the selection of the current president’s father as the custodian of the Reagan revolution. The judicial legacy of the Bushes has been raised hopes and dashed expectations: The father left us Thomas, but also Souter; the son brings Roberts, but now Miers. This may be Bush’s last opportunity to make an imprint on the Supreme Court, unless health forces Justice Stevens off the bench. The next resignation may well be that of Justice Scalia, fleeing in frustration.
The Republican hold on the presidency is razor thin, control of the Senate uncertain. There could well come a day, possibly sooner rather than later, when a Democratic president places a nominee before a Democratic Senate, and there will be little talk of keeping a balance on the Court. The Court will resume its leftward march, occasionally staggering back to the right. Conservatives slowed, but did not reverse, this trend.
The moment has passed; unless this nomination is derailed by the oddest of bedfellows, it would seem that this is, as Jim Morrison intoned, the end.