Miers, Bush, and a Discourse of Constitutionalism

Andrew E. Busch

October 1, 2005

Within hours of George W. Bush’s nomination of Harriet Miers to the Supreme Court of the United States, a debate had erupted among conservatives over the wisdom of the nomination.

Of course, the President and his circle defended Miers as an accomplished woman, a strict constructionist, and a tough character who could withstand the leftward pressures that invariably come to bear on Justices. Commentators like Hugh Hewitt pointed out that Bush had worked closely with Miers for years, and that it was Miers herself who had vetted Bush’s other federal court appointees, a collection that has been widely acclaimed by conservatives.

Other notable conservative commentators criticized the nomination with varying degrees of vehemence. These included John Fund, George Will, Nick Lowry, Charles Krauthammer, William Kristol, and a number of radio personalities. On the whole, they argued that Miers was an unknown quantity, unschooled in constitutional law, whose nomination came at the expense of rising stars of the conservative legal movement. Some even suggested that her name be withdrawn.

Unfortunately, neither side was above casting aspersions on the other. The pro-Miers camp suggested that elitism and sexism may have motivated Miers’ critics. The anti-Miers forces proposed that her appointment was traceable to Bush cronyism.

Since so little is known about Miers, it is certainly not possible to say with any degree of probability that she will be another David Souter. Indeed, it is difficult to fathom how anyone can be very against or very for this nomination at this point. The inferential evidence that has been uncovered thus far supports a view of Miers as generally conservative, pro-Second Amendment, and not rabidly pro-choice. Her stands on specific constitutional issues and on broader questions of constitutional philosophy are murky—murky enough to invite searching skepticism, but also murky enough that one must look elsewhere for the underlying cause of conservative rage.

There are at least two such causes. First, President Bush may have asked conservatives to just trust him one too many times. On issues from the No Child Left Behind Act to prescription drugs, Bush has pulled his party along with policies many found distasteful by promising big political payoffs which have yet to materialize and (conservatives suspect) never will. With Miers, they are being asked to make the biggest gamble yet. More generally, conservatives are for philosophical reasons quite properly reluctant to deal with important political questions by simply trusting the government—even that part of the government which is led by someone proclaiming a version of conservatism as his political faith. In 1980, Ronald Reagan assailed Jimmy Carter for “trust me government,” in contrast with which Reagan argued that his philosophy put its trust in the people. Many conservatives view the Miers nomination as another form of “trust me government.”

The second underlying cause of conservative discontent is related to the first. Conservatives thinking about the future sense that the Bush administration has gone out of its way to avoid the kind of hard public arguing that builds and cements long-term majorities. The problem is not Harriet Miers, though many conservatives have attacked her. The problem is that winning such contests on the cheap, no matter how good the nominee may wind up being, carries a severe long-term cost. Today, analysts are likely to identify the cost as taking the form of the demoralization of the Republican base. That outcome may well occur, but it is not the cost that conservatives should fear most. The biggest cost comes not in lost mobilization but in lost opportunities for persuasion. Republicans today may be the governing majority in America, but if so, it is a narrow majority indeed. Winning nomination battles through tactical acumen alone may not sustain that majority, and certainly will not expand it.

Once one gets past the turnout machines, the fundraising, the attack ads, and the rest of the minutiae, politics in the end is about persuading one’s fellow citizens that one’s view of the political world, including fundamental constitutional issues, is right. Stealth nominees are not in a position to make that case—indeed, they are chosen precisely because they have made no case. In this sense, many conservatives undoubtedly view the Miers nomination as but one piece—perhaps the final straw—of an administration pattern of simply not making the philosophical case for principles like federalism, limited government, or strict construction. Even when discussing judicial appointments, Bush has asserted the principles but rarely made the case for them. Though some of Reagan’s Supreme Court appointments may well be worse from a conservative standpoint than Miers will turn out to be, he also spent eight years of his presidency making the case for constitutionalism day in and day out. The GOP majority is built on the foundation laid by that effort twenty years ago. Conservatives anxiously ask where Bush’s disinclination to fight this fight will leave them twenty years from now.

The problem for conservatives is that it is far from clear that the defeat of the Miers nomination will make things easier for them or better for the country. Stung by opposition, Bush may not pick an openly conservative jurist as a replacement; or he may, but because no one really knows how good Miers would be, conservatives may inadvertently be trading a good justice they don’t know for a mediocre one they only think they know. Conservatives, who frequently caution liberals not to make the perfect the enemy of the good, might wind up doing so themselves. The president, who is fighting the good fight on another critical front against the bin Ladens and the Zarqawis, will be seriously weakened. Above all, what many conservatives don’t like about the Miers nomination is not the Miers nomination itself, which is only a symptom. They can focus on the symptom, or they can focus on a cure: coalescing behind a candidate in 2008 who will govern with a greater determination to shape national discourse and a firmer grasp of the policy and rhetorical imperatives of constitutionalism—and not just when a Supreme Court vacancy appears.

Andrew E. Busch is a Professor of Government at Claremont McKenna College and an Adjunct Fellow of the Ashbrook Center.