For years the Left has accused the Right of wanting to stack the U.S. Supreme Court with right-wing ideologues who will then write Republican policies into law. If this were true, conservatives would be united in support of Harriet Miers, President Bush’s pick to succeed Sandra Day O’Connor on the court. Yet the most vocal opponents of Miers are conservatives. How can that be?
There is some fear that Miers could become another David Souter — a nominee alleged to be conservative, but who turned to the left once seated on the high court. But read conservative columnists, editors, and bloggers, and it becomes immediately clear what the principle objection is: She might or might not be politically conservative, but nobody knows if she is legally conservative.
There is a difference between being politically conservative and being legally conservative. A political conservative might believe in limiting government and maintaining social traditions, but few conservatives would argue that those beliefs qualify one for a seat on the Supreme Court. Unlike liberals, who want the court to be another branch of representative government, conservatives want the court to fulfill its traditional role as an applier — not interpreter — of the Constitution. Simply voting for Ronald Reagan does not qualify a person to become one of only nine Americans entrusted with the Constitution’s care.
If conservatives thought as liberals do, they would not be so unhappy with the Miers nomination. But conservatives don’t want a Supreme Court justice to “represent” them on the courts. They don’t conceive of the judiciary that way. The Supreme Court’s nine seats are not to be divided up according to political, racial, sexual or any other representative criteria. They are to be given to the nine Americans most capable of protecting the Constitution from political attack. Harriet Miers is not on that list.
Conservatives supported John Roberts, despite misgivings about some of his legal views, because overall he has an unquestionably conservative approach to the law. While liberals on the Senate Judiciary Committee wanted Roberts to pledge that he would vote this way or that, conservatives inquired about his general judicial philosophy. It was not important that Roberts simply vote to overturn Roe v. Wade. After all, Roberts said repeatedly that he believed that decision was settled law, and conservatives still supported him. What mattered was that he had the intellectual ability to handle the most complex legal issues, and the humility to put the Founding Fathers’ words, as written into the Constitution, before his own beliefs.
Moreover, when President Bush’s message on Miers is: “Trust me,” it smacks of cronyism, which runs contrary to conservative principles. Conservatism holds individualism and meritocracy in high esteem. Conservatives dislike affirmative action for the same reason they dislike cronyism: People ought to be judged on their individual merits, not on who they know or what their skin color is.
Even conservatives who have given the president a pass on appointing political hacks to executive branch jobs have drawn the line at the Supreme Court. A certain amount of cronyism is expected in politics. But there is no place for it on the Supreme Court, no matter who is president. That is why the Founding Fathers created the “advice and consent” clause for Supreme Court nominations. It was to prevent presidents from packing the court with their friends and allies.
If liberals were correct and conservatives wanted to use the court to advance a political agenda, we would not be seeing statements such as these:
“There are a lot more people — men, women and minorities — that are more qualified, in my opinion, by their experience than she is.” — Sen. Trent Lott, R-Miss.
“There is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court’s tasks.” — Columnist George Will.
“Watching Bush strain to pump up her accomplishments was cringe-making.” — Rich Lowry, editor of National Review.
What conservatives really want is a court made up of America’s brightest legal minds. They have a different view than liberals do of what makes a bright legal mind, of course. But legal reasoning — not political belief — is the all-important criterion.
Harriet Miers might turn out to be plenty conservative, politically speaking. But how would she approach the vastly complex world of constitutional jurisprudence? We have no idea. Nor, perhaps, does she. No matter what one’s political beliefs, that ought to be disturbing. Most conservatives think it is.