October 17, 2005
To Err is Human � and so is President BushBy J. Peter Mulhern
In the physical universe every action has an equal and opposite reaction. Apparently the political universe is no different. Suddenly the braying Bush haters on the left are balanced by a cadre of deranged Bush groupies of indeterminate ideology.
The Harriet Miers debacle has been something of a coming out party for the groupies. If you spent any time over the last several weeks reading through the threads on any prominent conservative/Republican public affairs website you will have seen a great deal of evidence that many Republicans are so inured to criticism of President Bush that they are no longer capable of seeing any fault in the man.
At Freerepublic.com, Lucianne.com, Redstate.org and others, a substantial number of posters were prepared to argue that the conservative community should accept any Supreme Court nomination President Bush puts forward. The story line goes something like this: Trust the President, he knows Harriet Miers and he knows what he's doing. If he tells us she's a good conservative and that she's his choice it's time unite and fight for her confirmation. Anyone who raises concerns about the nomination is just immature, petulant, elitist, sexist, or prejudiced against born—again Americans. If the nomination looks like a blunder it is only because none of us can grasp the complex strategery of the three—dimensional chess game that President Bush and his right—lobe man Karl Rove are playing. Besides, it's really John McCain's fault. The Miers nomination was the very best the President could do given political realities in the Senate. Wait for the Judiciary Committee hearings, then the genius of George W. Bush will be revealed unto us in its full glory and all those petulant, elitist pundits will have to eat crow.
Some of you reading this recognize this story line because you've been contributing to it. You know who you are. Shame on you. There is no place in American politics for a cult of personality. Arguments predicated on the assumption that the maximum leader can do no wrong smack of North Korea. It is time to take a deep breath and start the long journey back from the land of the barking moonbats.
George W. Bush is a remarkable man. Only fools think he is a fool. I supported him enthusiastically through two national elections. I voted for him, I worked for him, and I contributed to him. He is certainly a better president than anyone else who had a realistic shot at the job in 2000 or 2004 would have been. He is a talented politician and a man of genuine courage. But he has his limitations and it is madness to pretend otherwise. Since one of his limitations is a chronic inability to take constitutional principles seriously, conservatives can't afford to accept his judgment about candidates for the Supreme Court uncritically.
The president takes an oath to uphold the Constitution. Twice President Bush has been called upon to defend constitutional principles from gross violation and twice he failed utterly to do so. He signed the McCain—Feingold campaign finance 'reform' into law, supporting the long—running effort of our political elite comprehensively to regulate political debate. When racial preferences were on trial before the Supreme Court in the infamous Michigan cases, President Bush directed his Department of Justice to argue in favor of discrimination. Both regulating political speech and official racism are blatantly unconstitutional. Neither presents any close or difficult questions. The President's errors were so egregious as to demonstrate a reckless disregard for the Constitution.
Has the President ever tried to use his 'bully pulpit' to guide the national conversation about Roe v. Wade? Has he ever tried to explain to the country that, whatever your views about whether and under what circumstances abortion should be legal, Roe is morally and legally untenable because there can be no right to do wrong? Not that I noticed. On the contrary, the President has gone to great lengths to avoid confronting the errors in the Supreme Court's abortion doctrine. Once again, constitutional principles ride in the back of W's bus.
President Bush has been a vigorous guardian of the Constitution in only one area. He is a fierce defender of his own executive prerogatives. It is at least possible that this commitment is about pride as much as abstract principle. We can count on the President to get the Constitution right as long as the issue has to do with the authority of the Secretary of Defense to detain terrorists. In every other area, he wanders.
President Bush knows Harriet Miers, but his own constitutional record strongly suggests that he doesn't know what he should want from a judge. His recommendation counts for very little and even his most ardent admirers should recognize that.
His record of nominating strong judicial candidates does nothing to make his recommendation more persuasive. Up until last week President Bush and his staff chose judicial nominees from among the select group of people that most informed conservative constitutionalists would recognize as leaders. With Harriet Miers the President broke that pattern. For the first time in connection with a judicial appointment he and his staff didn't listen to anybody outside the White House with an informed opinion. If you get arrested for reckless driving the first time the chauffer takes a night off, you can't very well point to your unblemished driving record as a defense.
When George W. Bush said 'trust me' many conservatives responded 'no way.' Nobody should be puzzled about this. President Bush has worked hard for years to earn the skepticism that greeted the Miers nomination and every conservative with a direct line to reality should understand that.
What about the idea that the Miers nomination was the best option available to the President given the unreliability of the Republican Senate? This is nonsense on stilts. By choosing Harriet Miers the President dodged a meaningful fight he stood an excellent chance of winning with the enthusiastic help of his friends and picked a meaningless fight he was destined to lose alone and unaided. This wasn't political realism it was political ineptitude.
A strong nominee who understands that the Supreme Court is the central front in a philosophical war, and who has the tools to wage that war, would alienate all the Senate Democrats, but he would galvanize most of the Republicans. The conservative wing of the legal establishment would mobilize to fight for such a nominee. The fight would be over principles worth fighting for. The President would have every prospect of persuading 50 Republicans to go the mat for confirmation. The Democrats would pay a price for their opposition because it would shine a spotlight on their extremism.
Harriet Miers, by contrast, never had a prayer. At last W is truly a uniter, not a divider. He has found a way to forge a bipartisan consensus in the U.S. Senate. Unfortunately that consensus is going to be that his latest Supreme Court nominee is not worthy of confirmation. He will be fighting over Harriet Miers' qualifications which aren't very important to anyone but her, and he will have very few allies. Democrats will denounce cronyism and vote against Miers in a block. Under the circumstances they can do so without looking wacky or even unreasonable. The opportunity to humiliate the President they love to hate will be much more than they can resist. They will sniff the Miers nomination, smell fear, and conclude that a disappointed President might react to her rejection by giving them Alberto Gonzalez, a gift that would be quite likely to keep on giving for many years. That Ms. Miers is an evangelical Christian with pro—life views will be too much for the Democrats, but not nearly enough for many Republicans who are haunted by the ghost of Souters past.
The Miers nomination, in sum, will unify Democrats and divide Republicans. That is what it was destined to do the moment it was announced, and it is breathtaking that the President didn't foresee the consequences of his choice. There is no clever strategy here, only a colossal blunder that has damaged the President and will damage him more before he starts climbing out of the hole he dug for himself. It is a strange sort of loyalty that leads some conservatives to argue that he should keep digging.
Anyone who tells you that hearings before the Judiciary Committee would clear everything (or anything) up is naive in the extreme. If this drama gets to the point of hearings Harriet Miers will, of course, come across as intelligent and well—spoken. No doubt she is capable of bandying words with Joe Biden. Who isn't? Intelligent, well—spoken, and smarter than Joe Biden doesn't add up to a compelling case for a Supreme Court nominee.
Like John Roberts before her, Harriet Miers will carefully avoid uttering anything other than the blandest most meaningless platitudes. Anything else would represent a very high—risk, unconventional strategy which is not something that comes naturally to clan Bush. Platitudes did the trick for Roberts because the stature he brought with him into the hearing room gave his words an aura they didn't earn for themselves. Harriet Miers isn't in a position to carry off the same stunt..
The brutal truth is that the President royally screwed up the most important domestic decision of his eight years in the Oval Office and he may never recover. If anyone had any doubt that his decision was indefensible the moment he appeared to announce it, his embarrassing attempts to defend it since should have put those doubts to rest. The White House hasn't tried to tell us that Harriet Miers will give Chuck Schumer a stinging lesson on the multifarious errors of modern liberal jurisprudence if only we wait to hear her out. Instead we are told that Harriet Miers is a good Christian, with some conservative views and those who oppose her are sexist snobs who should sit down and shut up. This public relations strategy compounds the President's initial mistake. It is downright clintonian, by which I mean beneath contempt.
Memo to Republicans: There is a time and a place for standing by your man. But if you don't notice when the Emperor has no clothes, you just might have a problem.
J. Peter Mulhern is an attorney in the Washington, DC area.