Strengthening Constitutional Self-Government


Recovering Civic Virtue


October 2005

by David Forte

With the nomination of Samuel Alito to the Supreme Court, President Bush has recentered himself on values consonant with his basic instincts and our constitutional order. The nomination will cause a fractious contest in the Senate, but it is a contest that, for the sake of the country, needs winning. The President, once known for his take-charge attitude and his courage, has stopped playing to the media and returned to his practice of civic virtue that is also needed on the court. He has sought the greater good of the country over his personal desires, preferences, and possible gains for himself.

The nomination comes as a relief to principled conservatives around the country. For some time now, the White House has been cast adrift from its moorings. Except for the rock solid dedication to the cause of liberty in Iraq, the administration has seemed to be without a sense of direction, dismayingly like the years of Bush I. It was reacting episodically to events and crises that buffet it. One way in which one knows that an administration is losing a sense of its own persona is when it frames responses to problems more to fit media criticism than to contend with the objective demands of history. It promises, in the heat of negative publicity, hundreds of millions of dollars to rebuild after hurricane Katrina, which could make a city like New Orleans only a better and more valuable target for the next series of hurricanes. Responding to a media barrage, the President suggests that a central cause of the damage and suffering arising from hurricane Katrina is the result of racial discrimination in New Orleans rather than in its location.

Another sign of an administration in search of a mission occurs when it prizes personal loyalty over dedication to principle. Cronyism, in part, left FEMA inadequately staffed to face multiple hurricanes. Loyalty, not principle, led the Vice-President’s Chief of Staff allegedly to engage in a cover-up.

Most signally, it was in the nomination of Harriet Miers that the President began to lose touch with the very basis of his Presidency. First, it was another appointment bred of cronyism. Second, he bowed to pressure from Justice O’Connor, the media, and his wife Laura (who frankly should have had the good judgment not to embarrass her husband) to appoint a woman. Third, after his first quasi-stealth candidate, John Roberts, made it through the Senate, the President sought someone with virtually no public position on anything. Fourth, knowing that Miers is a born again Christian, he equated fundamentalist Christians with the political feminists who had demanded a woman, thinking he could satisfy both. Fifth, he unknowingly ratified the Democrats’ version of the Supreme Court: a policy-making body needing partisans who will vote the "right" way on particular social issues. Lastly, he thought that his intuition about Miers was a sure guide, an uncomfortable reminder of when he claimed he really knew Vladimir Putin because he "was able to get a sense of the soul" of the man.

True, a few fundamentalist Christians had climbed aboard, but many more conservative opinion leaders immediately saw the folly. Few made excuses for the misstep. Robert Bork termed it a "disaster." George Will wrote, in one of his milder critiques, that there was no evidence "that she possesses talents commensurate with the Supreme Court’s tasks." Warming to his dismay, Will noted that the President’s capitulation to the demand for diversity was based on "the obvious assumption that the Supreme Court is, like a legislature, an institution of representation." Senator Sam Brownback, although displaying the prudence of expression appropriate for his station, clearly signaled that the nominee was not fit for the task before her.

At bottom, the commentators were calling the President to account for failing to exercise civic virtue and for failing to nominate a public servant schooled in the practice of civic virtue. Imbibing the lessons of the Greeks and Romans, as well as the teachings of the Scottish Enlightenment, and living the experience of the common law, the Framers understood that the virtuous man of politics must seek the good (Socrates), develop the habit of acting rightly (Aristotle), be true to one’s office (Cicero), obey the law of nature (Locke), and have a sense of moral balance in governance (Montesquieu).

Happily for the conservative movement, the President’s critics showed that leading conservatives in this country are less interested in policy results (as important as they may be) than they are in moral attitude of governance which is civic virtue. It was this attitude of governance that came out of the character of George Washington. It is what drove John Adams to assert that a free society lives under the rule of law, not the rule of men. It is what the Constitution concretizes, and the Federalist Papers explicates. It is the lesson taught by John Marshall who declared that "the framers of the constitution contemplated that instrument, as a rule for the government of courts, as well as of the legislature." We have come to call this attitude of governing Originalism, in regard to the courts, after the seminal speech by Edwin Meese in 1985. It is, in sum, this attitude of governance that turns a representative democracy into a republic of virtue.

As fine a person as she is, as competent a lawyer as people say she is, the fact is that Harriet Miers had not developed the solid understanding of what it takes for a Supreme Court Justice to fulfill his role. She lacked the Aristotelian virtues bred of education and reflective experience that would direct a person in such a position of awesome responsibility. She was unequipped to weather the blandishments of a liberal mindset, which is often lacking sufficient respect for the Constitution’s origins, and occasionally unapologetically so. The critics of the President metaphorically held their heads as they viewed at least a half dozens candidates who were trained in the virtues of judging, skilled in discerning the Constitution’s original understanding, and who had been shown to be thoughtful and articulate.

Those who took the President to task did him the greatest service and honor. They grabbed him by the lapels and said, "Snap out of it!" And he has. He put aside his desire for an Hispanic, or a woman, and chosen a person that, if confirmed, could be another great justice on the Supreme Court. With the nomination of Judge Alito, who was his first choice before advisers panicked him into the nomination of Miers, he has repaired to the values that he first brought forward to the American people when he ran for the Presidency, the same values that rallied our people after 9/11, and the values for which he was elected.

David Forte is a Professor of Law at Cleveland-Marshall College of Law in Cleveland, Ohio and an Adjunct Fellow of the Ashbrook Center.