The Harriet Miers Nomination

The Harriet Miers nomination to the United States Supreme Court promises to be to George W. Bush’s presidency what the takeover of the American Embassy in Teheran was to Carter’s. The difference is that Bush’s wounds will be self-inflicted. He made a terribly bad decision, a slap in the face to his most critical supporters, and he appears not to understand that he made a mistake. One is forced to wonder who, if anyone, is advising him.

Daniel Henninger of the Wall Street Journal dissects the Miers faux pas in an October 7 op-ed piece titled, “Hurricane Harriet Downs Power Lines Across Beltway.” According to Henninger, the 90-9 vote in the Senate to impose “Marquis of Queensberry” rules on the interrogation of terrorist detainees, a vote which included 35 Republican defectors, is “the first clear victim of the Miers nomination…there will be others.”  

Yes, conservatives have worked and toiled for generations to develop a political steamroller that could consistently elect Republican majorities to both houses of Congress, and with the decline of liberalism and the Democratic Party they stand poised to increase their numbers in the United States Senate to a filibuster-proof majority. For the past eleven years they’ve maintained control of the House of Representatives, their majority given permanence by the redistricting victories of 2001. And they’ve been able to send Republican presidents to the White House for seventeen of the last twenty-five years.  

But all of these are but icing on the cake to the conservative cause. What has always been at the very top of the conservative wish-list is a strong “strict constructionist” majority on the U.S. Supreme Court. It is control of the courts, the wresting of control from activist liberal judges, that has most motivated the conservative movement since the days of the Warren Court.

Getting to the heart of the matter, Henninger tells us that, “… at the moment at which the (Rehnquist and O’Connor) Court vacancies brought us to a crucial juncture in our political history, Mr. Bush failed to distinguish between a political policy and a political institution.”

In other words, what liberal judges and justices have done over the past twenty-five years, or more, is to turn our courts into instruments of national policymaking, essentially usurping the role of the Congress and the state legislatures. Over all those years, conservatives have been constructing a counterforce to stand against liberal efforts to institutionalize federal power and marginalize the rights and powers of the states.

Henninger points out that, “Harriet Miers may share these (conservative) reformist views, but her contribution to them is zero.…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.…In turn, Congress’s imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing.…”  

What George Bush apparently felt was most important is that he alter the policymaking role of the court. He could do that with a Miers appointment…maybe. He failed to understand that what conservatives have been working toward all these years is an institutional rebirth of the Court. 

With the Miers nomination George Bush has robbed conservatives of the validation they needed to confirm the rightness of their cause. Can anyone wonder why they are so upset? During all the years that conservatives were setting the stage for this once-in-a-lifetime juncture, George W. Bush was either a businessman in Texas, largely uninvolved and unconcerned about the battle between the forces of good and evil, or he was a young man of privilege, trying to find himself. 

And now, just five years after arriving on the national scene, he proposes to reward conservatives with a totally hollow victory. He is like the relief pitcher who comes to the mound in the twelfth inning of a nothing-nothing game and dishes up a home run ball on his first pitch.

What conservatives are now feeling is what a man might feel after being marooned, alone, on a desert island for thirty or forty years, driven to the point of madness by sexual fantasies, only to find himself rescued by George W. Bush and then marooned on yet another island with his own sister. Given the historical significance of this particular vacancy, Bush should have been smart enough not to make it and Miers should have been smart enough not to accept it.