The frivolous president
Facing the most serious task of his tenure at the most important job in the world, President George W. Bush shied away from a fight and acted with nonchalant frivolity.
Harriet Miers, by all appearances, is a fine woman and a top-notch lawyer. Given how little we know about her, we have no way of ruling out the possibility that she would be a good justice of the Supreme Court. In light of her apparent faith and despite her past flirtations with Al Gore and Michael Dukakis, it seems she would be on the right side of the abortion question. None of these considerations, however, erases the fact that President Bush made a horrible decision in nominating her.
Presented with a choice of A-list judges–Sam Alito, Janice Rogers Brown, Priscilla Owen, Michael Luttig, and Michael McConnell, to name a few–President Bush decided instead to pick his own personal lawyer to fill a lifetime spot on the highest court in the land. “Cronyism” is the wrong word. “Impertinence” or “flippancy” might better describe this choice–as Charles Krauthammer put it, “an exercise of regal authority with the arbitrariness of a king giving his favorite general a particularly plush dukedom. ”
Again, Miers may, in the end, be brilliant on the bench, but we have no way of knowing that. The idea that we should “trust” the President is laughable to anyone but the most gullible or the most partisan.
We have been trusting him along, and putting up with higher spending (despite his promises of vetoes), Medicare Prescription Drug boondoggles (the cost of which the White House knowingly hid from Congress and the people), immigration amnesty (which he won’t call by that name), and countless other missteps through five years. Instead of seeing that we were going along because of this moment, he took the right’s loyalty as something he could take for granted even in this moment.
No conservative who was alive for David Souter’s nomination should be ready to trust a Bush on a Supreme Court nominee. A man should not be punished for the sins of the father, but W. seems to deny his dad did anything wrong in naming Souter. When asked about that appointment last Tuesday, the President refused to answer, and smirkingly accused the questioner of “trying to get me in trouble with my dad.”
Watching this impudence on C-SPAN, I wished I were in the Rose Garden when the President gave that flip non-answer. “Are you kidding around, Mr. President?” I would have asked. “Because most of your voters do not think it funny that it is now illegal to say, ‘Our Father, who art in heaven,’ over the loudspeaker at their High School football game.”
“Or, does your father still stand by his pick of Souter?” I would have inquired. “If so, don’t you think you ought to at least criticize the old man who has made partial-birth abortion a procedure protected by the Constitution?”
“Or perhaps you think it was a small mistake, of no great consequence–like your trading Sammy Sosa away from the Texas Rangers? Do you think it is of no consequence to the families in New London, Connecticut, who are being evicted in favor of a corporate park at the moment?”
Eighteen million unborn children have been aborted since David Souter helped decide Planned Parenthood v. Casey, which found, by one vote, brand new reasons to protect abortion as a fundamental right enshrined in the Constitution. George W. Bush thinks it’s fine to joke about Souter.
George W. Bush, this nomination suggests, does not take the Supreme Court seriously. We might have suspected as much when Bush saved Arlen Specter twice. Bush showed it when he floated the name of Alberto Gonzales, the former Texas Justice who helped eviscerate his parental notification laws in Texas. He showed it when he publicly joked about naming Gonzales after Rehnquist’s death.
If he took the Supreme Court seriously, Bush would not have shied from a fight in the Senate, a fight he could win with 51 votes and some spine. By choosing Miers over Brown, Bush didn’t run from a fight like a coward, he casually passed on a fight like someone with something better to do.
But he doesn’t have anything better to do. In sports, there is a common exhortation, often made in the last inning or quarter of an elimination game, to “leave it all out on the field.” That means to hold nothing in reserve–to go all-in. This was the time to do it. The Supreme Court was his Game 7. President Bush was unwilling to break a sweat, much less shed some blood, in this fight. So he chose someone with no “dirt” on her–meaning someone with no evidence of good legal thinking.
Choosing a blank slate is bad for two reasons. First, it perpetuates the prevailing prejudice against nominees who have a clear record of judicial restraint, plain reading of the Constitution, and belief in the idea of enumerated powers. The Democrats are allowed to put up ACLU lawyers, but Republicans need to put up ciphers.
Second, blank slates don’t stay that way when they get on the high court. Unless judges are steeled against the temptations of power, unless they have a firm commitment to a strict reading of the Constitution and a limited role for the courts, they will be corrupted. Harriet Miers has a good heart. We do not want her trying to do good from the bench, or, as the majority did in Casey, making decisions aimed at protecting the good reputation of the Court.
We are not convinced that Harriet Miers would be a bad judge. But it is clear as day that George W. Bush made a bad decision in choosing her. That mistake, compounded by his other actions regarding the Supreme Court, indicate that the President does not believe the Court of John Paul Stevens is a grave threat.
But the Court matters to us. It matters more than anything else. Despite what his allies tell us, we will not “stop whining.” We will not, “trust the President.” We did not want a secret conservative. We wanted someone who would proudly stand up for the court as an interpreter of law, not a legislature-on-steroids.
Today, the only conservatives who are not profoundly disappointed in Bush’s frivolity are those who expected very little from him in the first place.
Tim Carney is a Phillips Fellow and a free-lance journalist in Washington, D.C.