President George W. Bush has nominated Harriet Miers, the official White House Counsel, to replace the retiring Sandra Day O’Connor on the Supreme Court of the United States (SCOTUS). The nomination was made on Monday October 3rd, 2005, the same day that John Roberts officially took his seat as Bush’s first SCOTUS appointee, and also took the reigns as the new Chief Justice of the Supreme Court, replacing the recently deceased William Rehnquist.
The fact that the President had the opportunity to appoint two new judges to the court at all during his term, let alone the rare opportunity to appoint two within a couple of months, should have been a cause for euphoric celebration on the Right, his and the Republican party’s base. When Mr. Bush was elected, he promised his constituency that, if given an opportunity to make appointments to the court, his appointee(s) would be strict constructionists in the mold of current conservative SCOTUS stalwarts Antonin Scalia and Clarence Thomas.
In last year’s Presidential election, Bush defeated Democratic nominee John Kerry by receiving over 62 million votes, the highest vote total ever received by any American candidate for the office. A large number of these voters, certainly the vast majority needed to secure Mr. Bush’s victory, knew when they cast their ballots that there was a strong likelihood of at least one, and likely multiple SCOTUS openings that would be filled by the man sitting in the Oval Office during the next term. Mr. Bush’s pledge to appoint solid conservatives who could likely be counted on to help reverse the court’s decades-long liberal leanings was one of the principal reasons that he received many of those votes.
So now, flash forward to less than a year after the election. Justice O’Connor announces her retirement, and within a couple of months, aging Chief Justice Rehnquist passes away after a period of ill health. Within a year, Mr. Bush has the opportunity to reward those 62 million voters with a pair of solid, proven conservative constructionists. Doing so with a pair of relatively young jurists could set the court’s conservative wing up solidly for decades to come, giving it a real chance to turn the judicial tide back towards traditional middle-American values in it’s rulings.
Replacing Mr. Rehnquist in this way was a wash. He was already a conservative stalwart on the court. However, Ms. O’Connor, despite being appointed by conservative hero Ronald Reagan to the court over two decades ago, was never a dependable constructionist vote. Ms. O’Connor developed the reputation as a “swing” vote on the court, one that might fall either way on any given issue. Her replacement with a solid conservative-style constructionist could give the court four dependable conservative votes on the important issues of our times: Scalia, Thomas, Roberts, and the new appointee.
Now, this is all assuming that the new Chief Justice is indeed a solid constructionist himself, who would be likely to rule in a mostly conservative fashion over the years. There were many in both the Republican and Democratic ranks that saw Mr. Roberts as a “stealth” nominee to the court, meaning that since he did not come to the court as an already practicing judge there were none of the prior rulings that the usual judicial nominees leave as a track record. This bothered Republicans and particularly conservatives, because they could not be sure that Mr. Roberts fit the President’s promise to them, and it bothered Democrats because it left them with little ammunition with which to fight the Roberts nomination during his confirmation hearings.
A “constructionist” is a person who construes a legal text or document in a specific way. In the discussion of SCOTUS, the term refers to those who ascribe to the theory that judges should make their rulings based on strict interpretations of the U.S. Constitution as it was originally designed and written by the Founding Fathers. Most conservatives ascribe to this theory, because it would generally lead to solidifying basic, traditional American morals and values. Most liberals would prefer judges who instead see the Constitution as a “living” document, one that can be altered as time goes by based on society’s changing morals and needs. With the Supreme Court being the final arbiter on the most important legal opinions in the land, you can see why the disposition of each judge is important. Conservatives want judges who will keep America on a traditional, moral path. Liberals want judges who will “open up” the country to more progressive ways.
The Roberts confirmation hearings turned out be little more than a test run for what was seen as the bigger upcoming battle, the hearings for the O’Connor replacement. The Dems’ ultra-liberal blowhard wing, led by the usual cast of unsavory characters like Ted Kennedy, Fritz Schumer, and Joe Biden took swings at Mr. Roberts in their questioning of him, but found that they were no match for the combination of his vastly superior intellect, his personal charm and warmth, and his largely undocumented legal opinions. And while conservatives remained less than 100% assured that he would rule in a strictly conservative manner, there was little doubt that he was indeed a constitutional constructionist, and decided they could live with that. Mr. Roberts was easily confirmed to his new post as Chief Justice.
However, the upcoming Miers hearings are going to prove much more contentious and vitriolic. The Dems know that if Ms. Miers turns out to be a conservative constructionist, that it will move the court farther to the ideological right as she replaces the neutral Ms. O’Connor. There are many reasons to believe that this is so. First, it has come to light that Ms. Miers is an Evangelical Christian, and that the church which she regularly attends is one of the most conservative in the land. Also, she has been President Bush’s private attorney, as well as serving a number of roles for his administration. With his pledge to nominate only strict constructionists, combined with his obvious intimate knowledge of her personal and legal feelings on the issues, the liberal-leaning Dems are wary that the President knows for a fact that she will be a solid conservative on the bench.
On the other hand, much like Mr. Roberts, because she was not a judge she has left no official legal rulings in her past to show a precedent as to how she may rule. This leaves the Dems with much less ammunition with which to fight her nomination, so we can expect that they will attack her on things such as her qualifications, her personal relationship with the President, and her past legal work for the White House in helping to form it’s largely socially conservative agenda.
However, it also leaves conservatives in the same boat. The President, after promising them that he would name only strict constructionists in the Scalia-Thomas mold, has now put forth his second straight stealth nominee, with “stealth” referring to the belief that the nominee may indeed be conservative, but with no legal opinions left in their wake to actually prove how they will rule in the future.
This has many conservatives in a state of despair, ranging from those simply worried to those who feel downright betrayed. The fact is, there are a number of judges in the land, particularly at the Circuit Court level, who have proven over the length of their careers that they are indeed strict constructionists with a conservative tilt, and who have the intellect and the experience to serve on the highest court. The U.S. Circuit Court is the level just below the Supreme Court, and thus can be thought of as a sort of “practice squad” for the next round of SCOTUS nominees.
One such judge is J. Michael Luttig of Texas, who I wrote about in my column on July 4th, 2005 titled “Courting a Texas Original.” Mr. Luttig has spent a career making just the types of rulings that would have sent conservative hearts soaring, and liberal mouths screaming in terror and anger. He is supremely (pun intended) qualified to sit on the highest court, and he has the benefit of also being just 51 years old, meaning that he would likely be around for decades. A Luttig nomination would absolutely, with his proven judicial record, meet the qualifications that the Bush voters were looking for.
A drawback to a nomination such as that of a proven conservative like Mr. Luttig is that the Dems, knowing with little doubt that the nominee would rule in ways that they do not support, would almost surely have decided to ultimately filibuster his nomination, meaning they would have tried to derail it by delaying it with stalling tactics that could potentially go on forever. This would mean that Republicans would have to use what has been termed the “nuclear option” to defeat the filibuster. With a majority in the Congress, the Republicans could change the voting rules to overcome the filibuster, and then vote the conservative nominee onto the court with that same majority.
This all-out political war over a Supreme Court nominee is something that conservatives have been both preparing for and looking forward to for some time. It has become obvious that liberals have lost the American people, that they cannot win a majority through elections to get their agenda through, so they have turned to the Supreme Court, a non-elected entity, to protect and expand their agenda. Losing the liberal-leanings that the court has taken in recent decades would mean losing all power, and could lead to the reversal of such liberal standards as the “Roe vs. Wade” ruling legalizing abortion, the recent “Kelo” ruling allowing expansion of eminent domain takings of private property by government, and recent anti-Christianity rulings against prayer in schools, the display of the Ten Commandments, and so on.
Conservatives have looked forward to this battle, because we believe that the stars have finally aligned in just the right (pun again intended) way as to make this a winnable battle. There is a Republican President with strong, socially-conservative values in office. There is a Republican majority in both houses of Congress. The American people have more and more shifted their hearts, minds, and votes to the right. Many believe that it is time to “get it on” in the battle to transform the Supreme Court, the last bastion of liberalism in the American ruling class, into a final conservative victory that would set the country on a conservative path for generations to come.
Now, with all this in his corner, and with his campaign pledge to his supporters just a year old, the President appears to be running from the fight. The man who righteously led the U.S. response to the 9/11 attacks by transforming the Middle East in the War on Terror, who, as Commander-in-Chief, has overseen the defeat of the Afghanistan Taliban and the dethroning and arrest of Saddam Hussein in Iraq, seems to have run from the fight here at home.
Is this pragmatic of the President? Does Mr. Bush believe that ultimately he might lose a battle over a proven conservative, despite his majorities in Congress and public opinion? While generally I have found myself on the President’s side when he has said “trust me” in the past, this time around I, like many conservatives, find that a difficult pill to swallow. The President has many potential nominees like Mr. Luttig out there from which to choose, nominees who would fit his pledge to us perfectly. His nominations of John Roberts, and now Harriet Miers, may in the end prove to be master-strokes if both end up as staunch conservatives which he slipped onto the court without the bloody political battles that many had predicted.
Yet we conservatives have long memories, and we remember how a true conservative named Robert Bork, one of the greatest legal minds of our time, was nominated by our hero, President Ronald Reagan, to the court in the late-80’s and saw his nomination shredded by the Dems partisan politics. We have also seen Republican Presidents name these “stealth” nominees in the past as a compromise, only to have the judge become a waffling moderate or worse, a dependable liberal, upon actually reaching their seat on the court. And we stood by silently as liberal hero President Bill Clinton made his appointments as proven liberal judges, including a former ACLU attorney named Ruth Bader Ginsburg.
President Bush had an opportunity to make this a no-doubt-about-it victory by adding a pair of proven conservatives to the United States Supreme Court. The odds and the timing were completely in his favor. Instead, he has decided to roll the dice with yet more Republican stealth nominees. Many liberals may remain concerned, but just as many conservatives remain rightly angered and hurt. In these appointments, Mr. Bush had better be proven right, or there will be an in-house bloodbath as the next Presidential election approaches. And if he were to be blessed with yet a 3rd chance to name someone to the court, here is to hoping that the word “stealth” is not associated with the nominee’s name.
“Trust me”, the President is saying. Perhaps many of us do, or would like to, Mr. President. The problem is that it was simply not necessary to take even that small chance this time around. And with SCOTUS being the single biggest social issue of our time, we should not need to put our trust in you, we instead should be putting it into the longtime track record of proven conservative jurists like J. Michael Luttig.