Oh Harriet

Conservatives turn on Bush

October 15, 2005

President Bush’s nomination of Harriet Miers to replace Sandra Day O’Connor and the intra-party squabbling that followed have been great political theater. Although many conservatives have predicted an ideological civil war for some time, no one forecast the event that would trigger it or the central issues of disagreement involved. Those that predicted a clash between economic conservatives and religious conservatives weren’t wrong exactly--there are cultural and religious aspects to this conflict—but this conflict is more complicated and curious than that.

Mona Charen adequately summarizes the frustration shared by many conservatives: “For 20 years, conservatives have waited to see Justice O'Connor's seat taken by an articulate, persuasive, thoughtful and energetic conservative jurist. The talents demanded include, but are not limited to, a philosophical grounding in political theory, thorough familiarity with court jurisprudence over the last two centuries and particularly the last several decades, a skilled pen and a commanding personality.” Harriet Miers just ain't the Christian soldier (with apologies to Mona's faith) they were looking for. Conservatives don’t just want a vote; they want a holy war.

Although for the past two weeks the right wing has essentially been arguing with itself, they have still managed to propagate a number of self-serving myths in the media. Ordinarily, wingnuts’ self-aggrandizement and/or dishonest attacks on liberals are easy to spot because the essential purpose of the article, radio show, TV show, etc. is to promote Republicans/conservatives while damaging Democrats/liberals. In the context of the Harriet Miers nomination, however, right wing myths are the underlying assumptions. They are promoted as the undisputed truth even as the authors/speakers attack their greatest hero since Ronald Reagan. Distortion comes very easily to zealots.

MYTH:  Elitism runs counter to conservative political philosophy

I know conservatives have been trained to hate people who went to elite universities, and generally that's a good rule of thumb. But not when it comes to the Supreme Court.

GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness.

-- Ann Coulter, “This is What ‘Advice and Consent’ Means,” October 5, 2005

Oh, please. Anyone with an ounce of sense knows conservatives have a far less elitist outlook than liberals.

-- Mona Charen, “Lost Opportunity,” Washington Times, October 11, 2005

REALITY

Unfortunately, this myth is actually extremely powerful and important. How can a party that sustains itself on wealthy individual and corporate interests achieve electoral success in a democratic country? How can they promote policies that benefit their funders—weakening labor laws that protect American workers, cutting government safety nets that support the nation’s poor, unemployed and elderly, alleviating the tax burden on the rich—without alienating a majority of Americans who are hurt by these policies? They do it by replacing populist policy with populist rhetoric and cultural warfare. According to this narrative, elitists are not the corporate CEOs who worry about paying estate taxes and keeping minorities out of country clubs. Rather, elitists are college professors living in Madison, WI on $45,000 a year, or 25 year-old Dartmouth grads making $10 an hour canvassing door-to-door for the Sierra Club. Essentially, conservatives have tried to remove material wealth from class discussion. Unfortunately, this absurd view is sustained because Bill O’Reilly and other loudmouths of his ilk promote it every single day.

Consequently, it has been fun to watch as the right wing betrayed its own pseudo-populist narrative in response to the Miers nomination. Listen to the anti-elitist Ann Coulter assess Harriet Miers’ competence to sit on the Supreme Court: “Harriet Miers went to Southern Methodist University Law School, which is not ranked at all by the serious law school reports and ranked No. 52 by US News and World Report. Her greatest legal accomplishment is being the first woman commissioner of the Texas Lottery.” So, according to Crazy Ann, Harriet Miers is unqualified to serve on the Supreme Court because she didn’t attend a top law school?  That sounds pretty elitist. Now, we agree that Miers is short on qualifications for a Supreme Court justice but the law school she attended is of secondary importance.  Of primary importance is the fact that she’s a Bush crony who is being marketed as a pro-life evangelical to assure right wingers that she’ll vote “right” on abortion.

And remember, these are the same Republicans who relentlessly attacked Charles Schumer, Pat Leahy and other Senate Judiciary Democrats for making John Roberts’ religion an issue. The difference is that the Senate Democrats were trying to make sure that Roberts would not let his personal religious views to affect his approach to law while the Bush Administration was assuring its Christian right base that Miers’ personal religious beliefs would govern her legal approach.

In fairness to the right, many conservatives were upset by Bush’s appeal to his nominee’s personal and religious beliefs. Rich Lowry of the National Review wrote a devastating article revealing the Administration’s numerous hypocrisies in connection with the Miers nomination. But even these commentators overplayed their hand by worshipping at the altar of originalist interpretation.

MYTH:  America needs an originalist justice

“Do you have an original understanding of the Constitution?" Which meant, roughly: "Do you believe the Constitution is a document that means what it says, or do you believe its meaning changes over time depending on what judges want it to say?" They didn't want to know whether somebody's personal faith spoke against abortion. They wanted to know whether that potential judge was going to "legislate from the bench," which was unacceptable — or whether he was going to "interpret the Constitution" — period.

-- John Podhoretz, “Why the Right Balks at Miers,” New York Post, 10/11/05      

Above all, they didn't want the president to send a signal with this nomination that he had abandoned his goal of picking a known originalist. Such a surrender could have a deterrent effect on future originalist judges working their way up through the system. It would also send the unmistakable signal that conservatives have unilaterally thrown in the towel over an issue that has motivated their grass roots like no other in the last 30 years.

-- David Limbaugh, “President Bush Must Veer Right, Embrace Conflict,” NewsMax, 10/11/05

They believe, however, it is more important the original meaning of the Constitution be respected than that the president be slavishly saluted…

Further, nothing in Miss Miers' intellectual temperament suggests she would seek to master these and similar works with alacrity after elevation to the Supreme Court. In sum, it is not Miss Miers as a person or as a lawyer that evokes opposition, but her complete inability to understand, to amplify, and to defend originalism as a justice.

-- Bruce Fein, “Lame Defense,” Washington Times, 10/11/05

Unlike liberals, who want the court to be another branch of representative government, conservatives want the court to fulfill its traditional role as an applier -- not interpreter -- of the Constitution. Simply voting for Ronald Reagan does not qualify a person to become one of only nine Americans entrusted with the Constitution's care.

-- Andrew Cline, “The Conservative Problem with Harriet Miers,” The American Spectator, 10/11/05

REALITY 

Each of these conservative writers asserts that Miers is unqualified because she does not have a conservative legal philosophy, if she has a legal philosophy at all.  However, there seems to be some confusion about what type of legal approach is appropriate.  Andrew Cline seems to be asserting a strict constructionist view, holding that a true justice should “apply” rather than interpret the Constitution. This approach is, of course, utter nonsense because the Constitution is full of non-specific phrases like “cruel and unusual” that cannot be applied without first being interpreted. Not even Clarence Thomas would profess a strict constructionist view.

Fein, Limbaugh, and Podhoretz want an originalist nominee in the Scalia/Thomas mold. Originalism--a legal philosophy that enjoys sacred status in conservative intellectual circles—is the belief that the Constitution has a fixed and knowable meaning. Originalist judges interpret the Constitution as they believe it was originally intended by the men who drafted and ratified it. Conservatives value originalism because they seek to protect against judges “legislating from the bench.” 

However, is originalism really a sound philosophy? The notion that judges should evaluate the Constitution based on how its authors originally intended it has a few major difficulties. For instance, how do we know there was a single intent and how can that intent be determined centuries later? What if the framers disagreed with the concept of original intent? In fact, the framers recognized the necessity of flexibility, which is why they purposely used broad language rather than specifically identifying every single right held by American citizens. 

Furthermore, does it make sense to be bound to the legal philosophy of wealthy, white, slave-holding men who lived over 200 years ago? The constitution itself was a political compromise. Madison, Hamilton, and Adams had very different opinions about most issues, and their political legacy was a constitution that created a political process to unify divergent views and interests. Thus, attributing a single fixed meaning in a specific case centuries later is as crazy as Ann Coulter. It seems absurd to assign a mythical "original intent" so much agency in the world we live in. Even the Catholic Church leaves room for evolving interpretations of Matthew, Mark, Luke, and John. So why can’t Scalia and Thomas? As society changes, political and economic conditions change, standards of decency change, necessitating new laws that may or may not be in conflict with an originalist interpretation of the Constitution. Even a drug riddled mind like Rush Limbaugh's should be able to grasp that slavery, and the three-fifths clause, which counted slaves as 60% of a person might not be adequate as the basis for today's jurisprudence. The framers understood that the Constitution they created was a living document that required flexibility to adapt to new times. Consequently, “They created, in John Marshall's words, a ‘constitution, intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs.’" Judicial review was in fact the "original intent" of the framers. Talk of strict construction, original intent and other judicial philosophies betray wingnut hypocrisy. Who are they really kidding. We all know that in general, the right is more concerned with very specific outcomes, like overturning Roe and legally alienating gays, than it is with what judicial philosophy motivates the process behind these desired outcomes.

MYTH:  The Democrats forced Bush to pick Miers

Finally, as disgusted as we are with Mr. Bush for this timid and tepid choice, we cannot forget it is Democrats brought us to this pass.

-- Mona Charen, “Lost Opportunity,” Washington Times, 10/11/05

REALITY

Although it is reassuring to surmise that the Democrats have the power to force President Bush to do anything, it’s also incorrect. There is no question that Bush appointed Miers from a position of weakness, but he was backed into a corner of his own design. At the time of the nomination, President Bush was registering the lowest approval ratings of his presidency (although they have since dropped further). A deteriorating situation in Iraq coupled with a disastrous federal response to Hurricane Katrina has seriously damaged President Bush’s popularity, but he has one thing going for him: his party controls the Senate, which is the legislative body that assesses his nominee. Consequently, it is hard to imagine that President Bush picked Miers because he was so afraid of the Democrats.

Furthermore, Senator Harry Reid’s recommendation notwithstanding, it is unclear that Miers is an attractive nominee for Democrats. It’s natural for Democrats to feel a sense of victory as they watch conservatives attack each other over this nomination.  But Bush has made it clear both in public (by using code words like “evangelical”) and in private (via Secretary of the Religious Right, James Dobson) that Miers is a reliable conservative vote on abortion. So instead of a legally principled vote against Roe, Miers gives democrats an unprincipled one. I don’t see how that amounts to a Democratic victory.