Jewish World Review Oct. 7, 2005 / 4 Tishrei,
Timid and tepid
The line making the rounds among those eager to excuse President
Bush for his choice of Harriet Miers to replace Sandra Day O'Connor is that
conservative opposition to her is based on snobbery. Thus, John Gibson of
the Fox News network demanded of professor Larry Sabato: "We keep hearing
about some conservatives questioning the credentials of Supreme Court
nominee Harriet Miers. Is that because could it be because she did not go
to an Ivy League law school, or because she's from Texas?" Sabato went
along: "Well, these are elites, and the elites come from the same places,
and the same schools, and do the same things, and punch the same tickets,
and we have seen this for years."
Oh, please. Anyone with an ounce of sense knows that
conservatives are far less elitist in their outlook than liberals.
Conservatives certainly don't worship at the shrine of Harvard and Yale. If,
as David Frum of National Review Online observed, the president had
nominated Edith Brown Clement (LLB Tulane) or Sen. John Kyl (LLB University
of Arizona), conservatives would be jubilant not fussing that these were
non-Ivy League grads.
No, the stinging disappointment we feel is the lost opportunity.
For 20 years, conservatives have been waiting to see Justice O'Connor's seat
taken by an articulate, persuasive, thoughtful and energetic conservative
jurist. The talents demanded by the post include, but are not limited to, a
philosophical grounding in political theory, thorough familiarity with the
Supreme Court's jurisprudence over the past two centuries and particularly
over the past several decades, a skilled pen, and a commanding personality.
Ideally, the president would have chosen someone with an established
reputation for legal brilliance. Why? Because the task of a Supreme Court
justice is to persuade. Even in dissent, his or her reasoning may influence
the law and our society for decades. This is not the place for an
affirmative action hire (though a number of splendid women judges were
available), nor for a fine staffer, no matter how solid and reliable she
seems to the president.
It strikes me as incorrect, however, to label this as
"cronyism." It isn't that President Bush was using this key appointment
merely to pay back the loyalty of a staffer (if so, he could have appointed
Karl Rove). Rather, I suspect arrogance. It was probably President Bush's
belief that because Miers has served him so well, she will do the same for
the nation. Some of us demur. The two jobs are completely different.
Remember the Peter Principle? Besides, isn't this the same man who believed
he could see into the soul of Vladimir Putin?
Others have explained that the watchword is "confirmable." If
that was the president's motivation, then he failed to learn from his own
success. Didn't the Roberts confirmation demonstrate that there are limits
to liberal obstructionism? Roberts was so well-qualified, well-spoken and
amiable that his nomination deflated the liberals without firing a shot. Far
from launching a filibuster, a number of Democrats wound up voting for
Roberts rather than look like extremist zealots.
The truth is that most Americans like conservative judges you
don't have to sneak them in under the radar. The Bork debacle is ancient
history. (And most Americans would have liked him if they hadn't been so
misled by smears.) Conservatives had learned from that bitter experience and
stood ready with advertising dollars to support any conservative nominee who
would be savaged by the Vast Left-Wing Conspiracy. They were not going to be
sandbagged again. Oh, and has anyone in the White House noticed that
Republicans control the Senate these days?
Finally, as disgusted as we are with President Bush for this
timid and tepid choice, we cannot forget that it is Democrats who have
brought us to this pass. I heard an NPR host a couple of weeks ago
describing the nomination process as "polarized." Some professor agreed that
liberals vote only for liberals and conservatives only for conservatives.
Nope. Conservative senators have, for the most part, voted to confirm
liberal justices. Justice Ruth Bader Ginsburg was confirmed by a vote of
96-3. Justice Stephen Breyer was approved by a vote of 87-9.
Of course, when conservative senators voted for Ginsburg and
Breyer, they could tell themselves that, after all, you couldn't expect
anything more acceptable out of Bill Clinton. What do they say to themselves
Every weekday JewishWorldReview.com publishes what many in Washington and in the media consider "must reading." Sign up for the daily JWR update. It's free. Just click here.