Why Bush picks
stealth nominees

Many conservatives cannot understand why President George W. Bush has taken the stealth approach in his selection of nominees for the Supreme Court. After all, we have what appears to be a Republican majority in the U.S. Senate. If the Democrats trash highly qualified nominees because their thinking reflects the president's judgment instead of the Democrat Party platform, it won't be hard to convince the public that they are simply trying to achieve through intimidation what they couldn't achieve at the ballot box in the last presidential election. Senate hearings in which an experienced, articulate conservative jurist took on the Democrats in front of the entire nation would also offer a unique teaching moment that could solidify public understanding of the constitutional crisis brought on by years of liberal arrogance in the federal judiciary. Republicans should be of one voice saying, "Bring it on!"

The broad conservative reaction against the Miers nomination is now being characterized by the mainstream media as the work of right-wing extremists. This provides cover for the real culprits in this scenario – the eight or so abortion-minded Republican senators who will be put in the spotlight if the president nominates an impressive conservative jurist. Will Arlen Specter and the other Republicans like him stand firm with the president, or join the abortion minded Democrat minority to provide the margin that derails such a nominee? The administration's stealth approach allows these Republicans to avoid taking a stand that would outrage the Republican grass roots, while it camouflages the leftist priorities that separate Sen. Specter and the others from the majority of their fellow Republicans.

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You're wondering: Why would anyone in the White House care enough to implement a strategy that protects these left-leaning Republicans? I think the answer lies in the well-known but little discussed fact that the issue of truly conservative judicial nominees stands athwart the fault line dividing the money powers of the Republican Party from the grass-roots providing most of its voting power at election time.

It's not just the Democrats who froth at the prospect of a nominee who will overturn Roe v. Wade or vote against the wishes of the homosexual lobby. Many big contributors to the Republican Party also look sour at such a prospect. While the preponderance of Republican grass-roots voters are undoubtedly pro-life moral conservatives, the preponderance of Republican money movers – the people who can mobilize the networks of donations from the corporate world – are indifferent or hostile to the moral agenda. I call these folks the "money-is-god" Republicans, MIGs for short. This is appropriate, since money is the key to media access in our politics today, i.e., to the crucial and generally determinative air power in the political wars.

The MIGs prefer candidates like Arnold Schwarzenegger, Christie Todd Whitman or Rudy Giuliani. They may have the personal name ID, public popularity and marketing "brand" to offer good prospects of electoral victory, but they believe that issues like abortion and homosexual marriage should be compromised or left off the political agenda altogether. If someone like this can gull moral conservatives with a little pious rhetoric, so much the better, so long as they put moral issues on the back burner when it really matters.

Since the Reagan era, the solid moral commitment of the Republican grass roots has prevented the MIGs from winning the presidential nomination and openly consolidating control of the party at the national level, but MIG background influence is enormous. The best evidence of this is the last several national conventions. The grass roots controlled the party platform – but the MIGs controlled the podium (not surprising, since it costs big bucks to put on a good show). This dichotomy led to the incongruous spectacle of hundreds of pro-life delegates insisting on a platform that defends the unborn and opposes homosexual marriage, while cheering with apparently sincere enthusiasm for people who oppose the pro-life position and support so-called gay rights, like Rudy Giuliani and Arnold Schwarzenegger.

More than any other, the issue of judicial nominations risks exposing this Republican schizophrenia and possibly triggering a break in the party's political identity. The courts have been the main vehicle for the assault on the moral identity of the American people. First, they struck down legislation and practices, like school prayer, that reflected the moral convictions and piety of the people. Now, judges such as those in Massachusetts are moving to take over the process of moral legislation by demanding that legislatures legalize homosexual marriage. This outrages the moral conservatives at the Republican grass roots. Yet without the courts, how could the MIGs pretend that moral issues are properly left out of the political arena?

Contrary to the silly nostrums of mindless moral libertines, no society can survive without moral legislation. Human relations, particularly those that have to do with family life, necessarily give rise to situations and dispute that cannot be resolved without reference to moral principles and values. Things like parental obligation, responsibility for children, and the nature and limits of authority within the home are areas where standards, rules and guidelines must be articulated, or painful, even tragic chaos ensues. In fact, wherever human relations are involved, moral precepts must be brought to bear in dealing with them. The question isn't "Will morality will be legislated?" It is only "By whom?"

Under our system of government, legislation is properly left to bodies elected by the people. But this means that moral issues must inevitably be the subject of a deliberative process, of debate and decision – decisions that presumably represent the moral consensus of the people. That is after all what representative government implies. Unfortunately, this understanding of law and government fatally conflicts with the MIGs' desire to remove contentious moral issues from the political arena. Better to leave them in the hands of the courts, so that politicians can plead helplessness in the face of judicial authority. Whatever lip service they pay to conservative judicial philosophy, therefore, the MIGs don't really want to interfere with the judiciary's usurpation of legislative power over our moral affairs.

When someone like former Alabama Chief Justice Roy Moore acts to challenge that usurpation, they quickly mobilize against him. That may explain why Bill Pryor, the man who organized the proceedings that resulted in Moore's removal as chief justice, was rewarded with a seat on the federal bench. It may also explain why the present Bush administration is so reluctant to promote to the Supreme Court someone who will assuredly vote to overturn Roe v. Wade. Such a vote would put the issue of abortion back on the legislative agenda; the issue that epitomizes the era of court-induced moral abdication in our political life.

Am I daring to suggest that President G. W. Bush doesn't want Roe overturned? I don't know for sure his personal inclinations. But even if he does, his White House faithfully reproduces the schizophrenia of the Republican Party. The president may be a moral conservative, but his chief political advisers appear to be MIGs, without exception. This means that we must at the very least entertain the possibility that MIG sensitivities play an important, if not decisive, role in deliberations on the politically charged issue of judicial appointments.

I would not go so far as to say that they explain the strategy the White House has pursued, though things are playing out as if that is so. Nominations to the lower federal courts have heartened moral conservatives because they included some well-known conservative jurists who have espoused principles at odds with the federal judiciary's usurpation of moral legislative power.

These appointments were especially encouraging because they put conservatives in line for serious consideration as justices on the Supreme Court. But with the critical replacement of Justice Sandra Day O'Connor (the key swing vote on several moral issues) on the line, great pains are being taken to look for someone not currently on the bench. Interesting that when moral conservatives had few people in those seats, they were treated as valuable credentials. After years of work to promote and advance a good number of conservatives to federal judgeships, we're told someone without judicial experience will bring a fresh perspective to the court. Moral conservatives need not be paranoid to wonder about this sudden change of perspective.

However that may be, the continual resort to stealth candidates avoids a battle that would ultimately force the hand of the MIG Republicans in the U.S. Senate. This must be comforting to people who are busily promoting such MIGs as Rudy Giuliani or Condoleezza Rice for the 2008 Republican presidential nod. The battle over a moral conservative jurist such as Janice Rodgers Brown would force the MIGs into the open. Their unwillingness to support such a nominee would rouse and unite moral conservatives at the grass roots. The scales might fall from the eyes of those who happily cheered for MIG speakers at the Republican conventions; or those who take comfort in the supposed conservatism of those commentators on the Fox News Channel who spout moral conservative rhetoric while promoting MIG politicians like Arnold Schwarzenegger when push comes to shove. Roused from their purblind slumbers, these grass-roots Republicans might be immunized against the charms of MIG stealth candidates in the next presidential elections. They might even be determined to back someone whose political career has consistently advanced the moral conservative agenda, even at the risk of great personal sacrifice.

Against the background of maneuvering for the 2008 battle over national control of the Republican Party, the stealth strategy makes sense. That background also brings out concern over the possible damage the strategy may already have inflicted on the forces of moral conservatism. Nationally prominent moral conservative leaders who stepped out in support of the Harriet Miers nomination have reportedly suffered a setback in terms of credibility with their grass-roots supporters. To recover, such leaders need only reaffirm the integrity of their principled discernment by helping properly to focus moral conservative attention and support during the Republican presidential primary process. Their restored influence will then help to counterbalance MIG dominance of access to media buying power. The situation is not as bad as it would have been had Harriet Miers' liberal mindset become clear in her votes after reaching the Supreme Court. But the damage wrought by compromise and confusion is nonetheless real – and needs a remedy more convincing to the moral constituency than the media fig leaf about defending "executive privilege."

Fortunately, the whole Miers episode may have renewed a sense of common principles and purpose among conservatives who in some way share a commitment to the moral ideas of the American founding. In order to make clear the serious grounds for their opposition to the nomination, they had to rediscover and articulate that commitment, in a context that made clear its relevance to the integrity of our Constitution and way of life. We can pray that this renewed consciousness of the common ground of conservative principle will have an influence in securing a principled pick for the Supreme Court, as well as united action in the larger political contest that lies ahead. For the Republican Party, and the nation, are in the midst of a new "Crisis of the House Divided." Both will find strength in unity only when stealth is repudiated, and we allow America's moral heart to appear again in the open light of our political day.