A timid and tepid pick

Posted: Oct 07, 2005 8:07 AM

The line making the rounds among those eager to excuse President Bush for his choice of Harriet Miers to replace Sandra Day O'Connor is that conservative opposition to her is based on snobbery. Thus, John Gibson of the Fox News network demanded of professor Larry Sabato: "We keep hearing about some conservatives questioning the credentials of Supreme Court nominee Harriet Miers. Is that because -- could it be because she did not go to an Ivy League law school, or because she's from Texas?" Sabato went along: "Well, these are elites, and the elites come from the same places, and the same schools, and do the same things, and punch the same tickets, and we have seen this for years."

 Oh, please. Anyone with an ounce of sense knows that conservatives are far less elitist in their outlook than liberals. Conservatives certainly don't worship at the shrine of Harvard and Yale. If, as David Frum of National Review Online observed, the president had nominated Edith Brown Clement (LLB Tulane) or Sen. John Kyl (LLB University of Arizona), conservatives would be jubilant -- not fussing that these were non-Ivy League grads.

 No, the stinging disappointment we feel is the lost opportunity. For 20 years, conservatives have been waiting to see Justice O'Connor's seat taken by an articulate, persuasive, thoughtful and energetic conservative jurist. The talents demanded by the post include, but are not limited to, a philosophical grounding in political theory, thorough familiarity with the Supreme Court's jurisprudence over the past two centuries and particularly over the past several decades, a skilled pen, and a commanding personality. Ideally, the president would have chosen someone with an established reputation for legal brilliance. Why? Because the task of a Supreme Court justice is to persuade. Even in dissent, his or her reasoning may influence the law and our society for decades. This is not the place for an affirmative action hire (though a number of splendid women judges were available), nor for a fine staffer, no matter how solid and reliable she seems to the president.

 It strikes me as incorrect, however, to label this as "cronyism." It isn't that President Bush was using this key appointment merely to pay back the loyalty of a staffer (if so, he could have appointed Karl Rove). Rather, I suspect arrogance. It was probably President Bush's belief that because Miers has served him so well, she will do the same for the nation. Some of us demur. The two jobs are completely different. Remember the Peter Principle? Besides, isn't this the same man who believed he could see into the soul of Vladimir Putin?

 Others have explained that the watchword is "confirmable." If that was the president's motivation, then he failed to learn from his own success. Didn't the Roberts confirmation demonstrate that there are limits to liberal obstructionism? Roberts was so well-qualified, well-spoken and amiable that his nomination deflated the liberals without firing a shot. Far from launching a filibuster, a number of Democrats wound up voting for Roberts rather than look like extremist zealots.

 The truth is that most Americans like conservative judges -- you don't have to sneak them in under the radar. The Bork debacle is ancient history. (And most Americans would have liked him if they hadn't been so misled by smears.) Conservatives had learned from that bitter experience and stood ready with advertising dollars to support any conservative nominee who would be savaged by the Vast Left-Wing Conspiracy. They were not going to be sandbagged again. Oh, and has anyone in the White House noticed that Republicans control the Senate these days?

 Finally, as disgusted as we are with President Bush for this timid and tepid choice, we cannot forget that it is Democrats who have brought us to this pass. I heard an NPR host a couple of weeks ago describing the nomination process as "polarized." Some professor agreed that liberals vote only for liberals and conservatives only for conservatives. Nope. Conservative senators have, for the most part, voted to confirm liberal justices. Justice Ruth Bader Ginsburg was confirmed by a vote of 96-3. Justice Stephen Breyer was approved by a vote of 87-9.

 Of course, when conservative senators voted for Ginsburg and Breyer, they could tell themselves that, after all, you couldn't expect anything more acceptable out of Bill Clinton. What do they say to themselves now?