WHEN the White House nominated Harriet Miers to the Supreme Court, it appeared to many conservatives that it had drawn the wrong conclusion from the smashing success it had achieved with the nomination of John Roberts. The White House seemed to have concluded that its success was owing to the number of key points on which the Democrats could not fix Judge Roberts-a kind of negative capability (to misuse Keats’s phrase) that he had maintained despite the length and breadth of his distinguished career. Harriet Miers exceeded Judge Roberts in negative capability. Her negative capability, however, was unadorned by any explicit signs of devotion to constitutionalism or conservative principle. In due course the president withdrew her nomination and replaced her with the anti-Miers, Third Circuit judge Samuel Alito Jr.
Alito’s nomination to the Court marks an epochal moment. Despite the presence of seven Republican appointees on the Court, its usurpation of power from the elected branches and from the states has continued more or less unabated since the 1960s. Richard Nixon’s four appointees barely retarded the Court’s transformation into the most dangerous branch: Lewis Powell, for example, voted with the Roe majority and was the author of the mischievous controlling opinion in the Bakke case that has so damaged the ideal of a colorblind society. Ronald Reagan appointed Anthony Kennedy and Sandra
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