If there was a single thread that ran through President Bush's two very different picks for the Supreme Court, it was stealth. Neither Roberts nor Miers had committed themselves on Roe v. Wade. Is the president ducking a fight? If so, in this he is not his best self. He hasn't shrunk from confrontations over taxes, or war, or medical research, and his forceful arguments in those areas have amounted to leadership.
Seeking a stealth candidate for the most important seat (i.e., the swing vote) on the Supreme Court certainly looks like weakness. And it's borrowed trouble. Despite the accumulating woes of the past month, the president is not actually feeble. Republicans have a 55 to 45 majority in the Senate. President Bush was recently re-elected after promising to appoint justices like Thomas and Scalia to the high court. There is little constituency for a liberal-leaning Supreme Court. A Gallup poll in June asked in which direction voters would like the president's appointee to move the court. Thirty percent wanted it to move left. Forty-one percent wanted it to move right. And 24 percent preferred that it remain the same. An entire generation of highly intelligent, well-grounded and scholarly legal minds have been credentialed in the past 20 years. Further, as the Roberts precedent revealed, a superior candidate is difficult for at least some Democrats to oppose, which diminishes the filibuster threat. So, lesson one: Don't act from weakness -- particularly when you are not weak.
As the president discovered with the nomination of Harriet Miers, the second trouble with stealth nominations is that people with little or no paper trail can surprise their own side as much as the opposition. The president had confidently declared that Ms. Miers shared his philosophy on judging -- and he must have believed this since (leftist fantasists notwithstanding) he is a man of his word. Yet a series of Miers speeches from the 1990s unearthed by the Washington Post's Jo Becker revealed a woman who was downright enthusiastic about judicial activism -- even justifying it in an extreme case. The Texas Supreme Court had threatened to cut off most school funds if the legislature did not devise a funding scheme the court decreed to be "fair." Miers defended the Court, saying, "My basic message here is that when you hear the courts blamed for activism or intrusion where they do not belong, stop and examine what the elected leadership has done to solve the problem at issue."
No. No. No. The courts are not justified in making policy choices when legislatures fail to uphold their responsibilities. They are not justified in making policy choices ever! If legislatures are lazy or stupid or incompetent, the voters can fire them. But judges sit for life. If they choose to legislate on matters like abortion, homosexual "marriage," school funding, or anything else, they are behaving as monarchs, not jurists.
This is the key point that liberals so often fail to grasp: This debate is about democracy. It is about republican accountability. It is about process. It is only tangentially about outcomes. Those who endorse originalist jurisprudence are not looking to pack the courts with conservative judges who will declare minimum wage laws unconstitutional or "find" a constitutional right to a flat tax. They (we) endorse original intent jurisprudence because it is the only way to anchor judges to the Constitution they claim to revere. In order to adjudicate, for example, what "unreasonable search and seizure" means in the 21st century, judges must ask what the founders understood by the idea, not what Justice Breyer or Souter thinks is fair or appropriate. If justices of the Supreme Court are simply going to legislate their policy preferences, why not simply close down the other two branches, and while we're at it, tear up the Constitution? So lesson two: Avoid anyone who is not an explicit, marrow-deep originalist.
Finally, by choosing a stealth nominee, the president does an injustice to the conservative cause. We are ready and eager to show off our judicial talent. They come in all colors and both sexes (not that we countenance set-asides). Conservative grass-roots groups stand ready to campaign on their behalf -- and more important, to counter any smear attempts by the liberal claque. So lesson three: Mr. President, be of stout heart. A strong originalist like Alito, Luttig or McConnell will do you proud, unite the conservative movement behind you, and chisel a key triumph in your legacy.