Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day – to name his personal lawyer.
In a decision deeply disheartening to those who invested such hopes in him, Bush may have tossed away his and our last chance to roll back the social revolution imposed upon us by our judicial dictatorship since the days of Earl Warren.
This is not to disparage Harriet Miers. From all accounts, she is a gracious lady who has spent decades in the law, and served ably as Bush’s lawyer in Texas and, for a year, as White House counsel.
But her qualifications for the Supreme Court are nonexistent. She is not a brilliant jurist – indeed, has never been a judge. She is not a scholar of the law. Researchers are hard-pressed to dig up an opinion. She has not had a brilliant career in politics, the academy, the corporate world or the public forum. Were she not a friend of Bush, and female, she would never have even been considered.
What commended her to the White House, in the phrase of the hour, is that she “has no paper trail.” So far as one can see, this is Harriet Miers’ principal qualification for the U.S. Supreme Court.
What is depressing here is not what the nomination tells us of her, but what it tells us of the president who appointed her. For in selecting her, Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas. In picking her, Bush ran from a fight. The conservative movement has been had – and not for the first time by a president by the name of Bush.
In choosing Miers, the president passed over outstanding judges and proven constitutionalists like Michael Luttig of the Fourth Circuit and Sam Alito of the Third. And if he could not take the heat from the first lady, and had to name a woman, what was wrong with U.S. appellate court judges Janice Rogers Brown, Priscilla Owen and Edith Jones?
What must these jurists think about their president today? How does Bush explain to his people why Brown, Owen and Jones were passed over for Miers?
Where was Karl Rove in all of this? Is he so distracted by the Valerie Plame investigation he could not warn the president against what he would be doing to his reputation and coalition?
Reshaping the Supreme Court is an issue that unites Republicans and conservatives. And with his White House and party on the defensive for months over Cindy Sheehan and Katrina, Iraq and New Orleans, DeLay and Frist, gas prices and immigration, here was the great opportunity to draw all together for a battle of philosophies, by throwing the gauntlet down to the Left, sending up the name of a Luttig and declaring: “Go ahead and do your worst. We shall do our best.”
Do the Bushites not understand that “conservative judges” is one of those issues where the national majority is still with them?
What does it tell us that the White House, in selling her to the party and press, is pointing out that Miers “has no paper trial”? What does that mean, other than that she is not a Rehnquist, a Bork, a Scalia or a Thomas?
Conservatives cherish justices and judges who have paper trails. For that means these men and women have articulated and defended their convictions. They have written in magazines and law journals about what is wrong with the courts and how to make it right. They had stood up to the prevailing winds. They have argued for the Constitution as the firm and fixed document the Founding Fathers wrote, not some thing of wax.
A paper trail is the mark of a lawyer, a scholar or a judge who has shared the action and passion of his or her time, taken a stand on the great questions, accepted public abuse for articulating convictions.
Why is a judicial cipher like Harriet Miers to be preferred to a judicial conservative like Edith Jones?
One reason: Because the White House fears nominees “with a paper trail” will be rejected by the Senate, and this White House fears, above all else, losing. So, it has chosen not to fight.
Bush had a chance for greatness in remaking the Supreme Court, a chance to succeed where his Republican predecessors from Nixon to his father all failed. He instinctively recoiled from it. He blew it. His only hope now is that Harriet Miers, if confirmed, will not vote like the lady she replaced, or worse, like his father’s choice who also had “no paper trail,” David Souter.