Thomas Lifson's optimistic analysis of Harriet Miers' potential to move the Supreme Court back toward constitutional sanity may be spot on. Perhaps there is something magical about an off—the—rack corporate litigator who also happens to be a dedicated church lady with strong ties to the crypto—communist ABA. Maybe, through the alchemy of small group dynamics, she can bring Anthony Kennedy and even the prodigal Souter into the conservative fold when crucial votes are counted. Let's assume that she can. Her nomination is still a mistake.
The conservative movement needs much more from President Bush's Supreme Court picks than a reliable vote and a soothing colleague for the other justices. It needs intellectual leaders for the court and for the nation. It needs justices with the stature to sneer at liberal inanities and make the sneer sting. It needs justices who force the left to confront the excruciating fact that conservatives can be brilliant. It needs justices who can lead the court and the nation to understand the stupidity of the conventional wisdom that is so thoroughly entrenched in constitutional law.
Our intellectual infrastructure is badly decayed and Supreme Court Justices have an important role to play in overhauling it. To play that role we need justices capable of a profound impact on the law and on the culture of which the law is part. When George W. Bush promised to look for justices like Clarence Thomas and Antonin Scalia, most conservatives understood him to mean that he would look for greatness. Harriet Miers might become a great justice, but no serious person will claim that it's likely. Madam Justice Miers may well be a nightmare for the abortion boosters and the racial grievance mongers. It doesn't follow that she is the answer to conservatives' dreams.
The nominee we need wouldn't necessarily have a degree from the Harvard Law School. In fact, one of the strongest arguments in favor of the President's second Supreme Court nominee is that she has never been polluted by that institution or any other elite cesspool. Conservatives have long and bitter experience with the effect of Ivy League intellectual pretensions on jurists with second and third rate minds (Justices Kennedy and Souter leap to mind.) The problem isn't that Harriet Miers, like Justice Jackson before her, lacks a prestigious educational background. The problem is that nothing in her life story even hints that she might have the right stuff to be an important intellectual leader.
Graduating from law school, working as a commercial litigator in a large firm, rising to become the managing partner of that firm, dabbling in local and ABA politics, and signing on with a rising politician to do spade work, are all pretty pedestrian achievements. Those of us who have been around the law a bit know any number of people with similar background and know that many of them shouldn't be trusted to shine shoes. If Harriet Miers turns out to have the stuff of greatness it will be the biggest surprise since Ulysses S. Grant turned out to be the right general to win the Civil War, and Grant didn't start at the top.
Conservatives feel betrayed and they should. They have been betrayed. We were promised that W would add some serious conservative firepower to the Supreme Court. He had the chance and he chose to reward a loyal friend instead. Time and some good results may take away most of the sting. But conservatives won't soon forget that when crunch time came President Bush treated a Supreme Court appointment like a garden variety patronage job. This will badly damage the ties between the Republican Party and its most passionate supporters. Unless the nominee shows undreamed of depths in her confirmation hearing (which might very well make her unconfirmable) there will be no opportunity to repair that damage before the 2006 elections. No matter what's on the docket, it's going to take much more than one year to redeem the President's apparent mistake.
Betraying the people who voted, worked and gave to put you in office is always bad politics. The reports of Karl Rove's political genius were, it seems, greatly exaggerated.
J. Peter Mulhern is a lawyer in the Washington, D.C. area.