I have not blogged about the President's nomination of Harriet Miers to replace Sandra Day O'Connor on the Supreme Court. I have no special expertise in law or constitutional law and I don't know anything about Harriet Miers. The lack of knowledge of Miers did not stop the conservative blogosphere from having a melt-down, however. Michelle Malkin summarized the reaction on Monday:
What Julie Myers is to the Department of Homeland Security, Harriet Miers is to the Supreme Court.... It's not just that Miers has zero judicial experience. It's that she's so transparently a crony/"diversity" pick while so many other vastly more qualified and impressive candidates went to waste. If this is President Bush's bright idea to buck up his sagging popularity--among conservatives as well as the nation at large--one wonders whom he would have picked in rosier times. Shudder.
I was struck by both the tone and the specifics of the reactions to the pick. In my work, whenever I see an intense emotional reaction which does not seem to fit the situation, I wonder what could be fueling the passions involved. In this case, the lack of judicial experience seems unlikely to have been terribly important; judicial experience has been no guarantee of greatness in a Supreme Court judge, nor has lack of such experience been a guarantee of mediocrity. The second point, crony/diversity, is also unpersuasive. "Cronyism" is merely another description of the President picking someone he knows well; isn't that what we would want in a chief executive? (I am deliberately over-simplifying the argument here for purposes of my discussion.) Likewise, "diversity" is simply a way of describing the essential political nature of the pick. All three issues seem relatively unimportant when determining the quality of a Supreme Court pick. Which left me to ponder what role the sense that "so many other vastly more qualified and impressive candidates went to waste" had in evoking the reaction.
I do not mean this post to support or refute the nomination of Harriet Miers to the Court, but rather to explore the nature of the disappointment and distress seen in the blogosphere.
Disappointment is one of the cruelest emotions. It occurs when our expectations are lifted and then dashed. Many people guard against disappointment by never allowing themselves to have conscious desire. However, as long as one is alive, one will have wishes and desires.
A very large segment of the electorate, perhaps a majority, maintains traditional values. They have been marginalized by the liberal elites for over 30 years. Since the time of Ronald Reagan many have hoped to one day see the imbalance in our political life redressed. When George W. Bush was elected, the desire was ignited. Here was a President who seemed to honor traditional values. He pledged more than once to nominate strict constructionists, originalists, to the Supreme Court, if there were ever an opening on his watch. When he nominated John Roberts, many had no idea of who he was. The Senate hearings and the build up to the hearings, were instructive of many things. The money and sway over the media held by the liberal interest groups was striking. Despite having minimal fodder within Roberts's extensive written record, they were able to find ways to try to smear him. His intellectual advantage over the Senators interrogating him, however, was unmistakable. The smears were stopped in their tracks and Roberts was seen to be exactly the kind of man we would want on our highest court. There were two important points to take from the Roberts hearings. First was the fact that the opposition would stop at nothing to smear and discredit a conservative nominated to the high court. Second was the fact that despite there being no grounds for opposing Roberts based on anything resembling a trenchant fact, 22 Democrats still refused to vote to confirm him.
This left President Bush in a difficult spot when a second spot opened up upon Rehnquist's death. While it is true that there are many noted conservatives who have written brilliantly and spoken eloquently about the virtues of closer adherence to the text of the Constitution, it is equally true that that very fact rendered them more difficult, perhaps impossible, to confirm... which brings us to the first and only rule of politicians:
The absolute first rule of politicians is to get re-elected.
A corollary is that the candidate who seizes and establishes the linguistic battleground has the initiative and thus, is more likely to be elected.
Senators are not famous for their courage; they are more noted for their extreme self-regard and their timidity. Republicans and Conservatives have a structural disadvantage since the Media serves, all too often, as the house organ for the Democratic party. There are too many Republicans who cannot afford (at least in their own minds) to risk being labeled a "right wing extremist", which is the appellation that surely would follow from any nomination of a committed, vocal Conservative to the Supreme Court.
The nomination of a person like Luttig would represent the triumph of desire over reason. My guess is that any nominee with a paper trail acceptable to the conservative base would have, at best, a less than 50:50 chance of being confirmed. Those who are most distressed by the Mier nomination fail to understand the power that the legacy media still has to frame the debate. Because John Roberts had so little of a "paper trail" of his own (much of what he wrote was as an agent for others), the ability to demonize him was limited and ultimately failed.
Erick at Redstate.org believes that the President has a deeper, longer term perspective on this nomination:
But, from a political point of view, let me say that I think this has the potential to be a brilliant move by the President. Let's just consider this perspective for a minute.
I start from the premise that Miers is exactly as Bush says she is --- a prolife conservative who will interpret the law faithfully to the original meaning of the constitution and not legislate. We know that Democrats, including Harry Reid, recommended Miers for the position.
So, Bush went with their recommendation. Now we are in this position: If the Democrats accept Miers they will most likely have put a female Scalia on the bench. If the Democrats now reject Miers, the President can make the case that he (A) consulted the Democrats; (B) took one of their own recommendations; (C) saw them reject she who they recommended; (D) so now he feels free to go with someone like Alito or Luttig or Batchelder or Corrigan.
One of the reasons the Republicans have been having so much electoral success is that the Democrats have appeared to surrender to the most extreme in their party. If Bush were to force the issue with a jurist who could be plausibly labeled as extreme, it would undo much of what has made the Republican party ascendant. The Conservative base would have won the battle on the way to losing the war.
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