Disappointed, But Still Hopeful

October 3, 2005

I’m initially disappointed in President Bush’s Harriet Miers Supreme Court nomination, but not quite ready to run out in front of the beer truck. Part of the problem with the commentating profession is that it sometimes pressures you to step out before all the facts are known. With that caveat in mind — and a few more to come — here goes.

I was counting on the president to nominate a well-known originalist scholar. Since he can pick whomever he chooses, why not select not only a strict constructionist, but someone well known to be among the very cream of the judicial crop?

More than a handful of potential nominees fill that bill, including Michael Luttig, Michael McConnell, Janice Rogers Brown, Priscilla Owen, Edith Jones and others. Few court watchers I know of considered Miers to be in that elite group.

To be sure, the fact that court-watching Bush supporters didn’t anticipate the Miers nomination is no reason to oppose her. The question is not whether we all know Miers to be an ideal originalist appointment, but whether, in fact, she is.

Since President Bush knows her so well and professes to believe so strongly in originalism, shouldn’t we trust that he wouldn’t have appointed her unless she were a highly qualified originalist? But here’s the rub. Many conservatives are uncomfortable accepting the wisdom of this appointment on blind faith.

Some may counter that this is hardly blind faith: The president has consistently appointed strong conservatives to the bench. For the most part I would agree, but the Miers appointment, on its face, at least appears compromised, and that’s troubling. (While Roberts was a stealth appointment concerning his originalism, there was nothing stealth about his legal credentials.)

On the surface, she is a very close friend of the president’s. Friendship should certainly not disqualify a person, but the president has a duty to appoint the most qualified people to the highest court. While personal loyalty is admirable, the Constitution should never be subordinated to it.

I also hope the president isn’t merely trying to avoid controversy. Is he so beleaguered that he has chosen to follow the path of least resistance — to appease the Left? If so, I strongly believe he is grossly misreading history and, more importantly, his conservative base.

To the extent that the president’s popularity has waned, it is mostly because he has disappointed his base. He should never worry about avoiding the Left’s hand grenades, whose pins are always pulled.

Of all things I thought he had learned in spades, it was that his father’s overtures to the Left not only were unappreciated and rebuffed — they also deeply wounded his presidency and opened the door to eight years of Clinton.

Which brings me to the clincher. Part of me says, “Calm down, the issue — as I said above — isn’t whether we conservatives know Miers is going to be a stellar, originalist jurist, but whether, in fact, she will be. It’s the integrity of the Constitution that’s paramount, not whether conservatives are mollified. So if Mr. Bush knows she is going to be excellent, that’s all that matters in the end.”

On the other hand, I believe he had the power to accomplish both things: to appoint someone he knew to be a highly qualified originalist, and someone his conservative base knew to be as well — but he didn’t do it — again.

While the Constitution and the Court are monumentally important, they aren’t the only institutions in play here. The future of the presidency and conservatism itself are currently in the crosshairs as well. We are well into President Bush’s second term, and sometimes he seems to be letting the liberal tail wag the dog.

By acting apologetic about conservatism in this and other recent actions, e.g., post-Katrina, he’s sending the wrong signal at the wrong time. If the Republican Party’s standard-bearer acts tentative about conservative solutions and fighting for them, how can we expect the base to be fired up, especially as we go into 2008 without a natural successor to replace him — given that Vice President Cheney won’t be running?

I truly wish President Bush had seized this opportune moment to reenergize his base and his presidency by appointing a person on his list whose Scalian credentials are common knowledge.

But I would also be remiss if I didn’t close with a confession. As I’m submitting this column, I’m hearing very good things about Ms. Miers from people who know her and whom I trust, like she’s a strong, pro-life evangelical Christian, a conservative’s conservative, an originalist and a very capable lawyer. If so, I will enthusiastically support her — and the Left will go to war against her. We should welcome that fight.