The original White House sales job was that the Miers choice was a welcome selection of a distinguished Texas lawyer whose gender only enhanced her status. That sales job was ineffective in avoiding a sudden explosion of conservative displeasure that Bush chose someone with no roots in and no ties to a movement to fashion a new judicial philosophy that stretches back at least to Ronald Reagan's election in 1980.Correct again as unusual, King Thursday.
Elsewhere in his column Ollie refers to conservatives as “chagrined” rather than displeased. I would say “outraged” is a better word, given that Bush’s choice shows an absence of consideration for the importance of this nomination to the conservative agenda. Why the outrage? Because conservatism, to its adherents is viewed as a “movement” (well put, Ollie!), in the same sense that the political left speaks of the labor movement or the civil rights movement. Conservatism viewed as a movement is not seen as an inevitable historical development driven by a struggle between classes, genders, or religions, but rather a struggle for the acceptance of a few fragile values concerning human freedom, and belief in the intimate connectedness of religious, economic, and political freedom.
The Supreme Court, designed as the least responsive branch of our government, is the last branch to feel the impact of these ideas, which have been ascendant in our politics for decades (not to mention a few minor changes in Eastern Europe and Asia during that time). That lag has been compounded by a series of unfortunate prior nominations by Republican presidents many of whom faced a Senate confirmation process controlled by their political opponents. But Conservatives felt that now at last was the time for the lag to end. Then came Miers.
The best summation of this feeling I have read is by Dan Henninger:
For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.Exactly. Here is the conservative opportunity of a decade, and the White House utterly squanders it for no reason except convenient cronyism. Conservatives now feel as though they have cast their pearls before swine.
Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.
If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.
No wonder we are furious.