By Harold Meyerson
Wednesday, October 5, 2005
You could cut the disappointment with a knife. "This is the moment for which the conservative legal movement has been waiting for two decades," David Frum, the right-wing activist and former Bush speechwriter, wrote on his blog a few moments after the president dashed conservative hopes by nominating Harriet Miers to succeed Sandra Day O'Connor on the Supreme Court.
Bypassing all manner of stellar Scalia look-alikes, the president settled on his own in-house lawyer, whose chief virtue seems to be that she's been the least visible lawyer in America this side of Judge Joseph Crater. Miers has authored no legal opinions that can be dissected, no Supreme Court briefs that can be parsed, no law review articles that can be torn apart.
Which, I suspect, is why her selection cuts so deep in right-wing circles. The problem isn't only that Miers is not openly a movement conservative but that she's as far from a public intellectual as anyone could possibly be. In one fell swoop, Bush flouted both his supporters' ideology and their sense of meritocracy.
Worse, he bypassed the opportunity to demonstrate their intellectual seriousness -- conservatism's intellectual seriousness.
Consider the following from George Mason University law professor Todd Zywicki, writing on a right-wing legal-affairs blog on Monday: "There are two possible ways to think about appointments: one is to appoint those who will simply 'vote right' on the Court, the other is to be more far-reaching and to try to change the legal culture. Individuals such as Brandeis, Holmes, Warren, all changed both the Court and the legal culture, by providing intellectual heft and credibility to a certain intellectual view of the law. . . . Bush's back-to-back appointments of [Chief Justice John] Roberts and Miers is a clear indication that his goal is at best to change the voting pattern of the Court. . . . Neither of them appears to be suited by background or temperament to provide intellectual leadership that will move the legal culture."
Note Zywicki's trio of legal heavyweights: Louis Brandeis, Oliver Wendell Holmes, Earl Warren, all figures in the liberal pantheon (though Holmes was less a liberal than a dissenter from his era's conservatism). Now, after three decades of a legal counterrevolution against the egalitarianism of the mid-20th century, the right had developed its own pantheon, its Brandeises-in-waiting. And Bush ignored them all.
Many conservatives assumed that Bush knows his Harriet Miers and concluded that she'd probably move the court, and nation, to the right. But her nomination was nonetheless an affront to the amour-propre of conservative intellectuals everywhere. "For all we know, she will be so conservative that she'll make Clarence Thomas look like Kanye West," wrote commentator John Podhoretz. "It's still an unserious nomination, which is what those of us who are objecting to it are objecting to."
But the conservative intellectuals have misread their president and misread their country. Four and a half years into the presidency of George W. Bush, how could they still entertain the idea that the president takes merit, much less intellectual seriousness, seriously? The one in-house White House intellectual, John DiIulio, ran screaming from the premises after a few months on the job. Bush has long since banished all those, such as Army chief of staff Gen. Eric Shinseki, who accurately predicted the price of taking over Iraq. Yet Donald Rumsfeld -- with Bush, the author of the Iraqi disaster -- remains, as do scores of lesser lights whose sole virtue has been a dogged loyalty to Bush and his blunders. Loyalty and familiarity count for more with this president than brilliance (or even competence) and conviction.
Besides, just because the conservative intellectuals are itching for a fight over first principles doesn't mean their country is. The conservative legal movement may have been waiting for this moment, as Frum wrote, for two decades, but the conservative economic movement had also been waiting for more than two decades for its moment, its fight over Social Security. Bush indulged the economic right, and look what happened: Armed with the best thinking of Heritage, Cato and all the right-wing think tanks, the president took on the New Deal and has not yet recovered.
Now the legal right wants -- what? A public debate over the right to choice? A frontal assault on the right to privacy? A nominee who'll argue, as right-wing darling Janice Rogers Brown has, that the minimum wage and Social Security are unconstitutional? Is it any wonder that Bush, particularly in his weakened state, chose to sidestep those fights? Most of the right wing's legal agenda commands minority support in the country and provokes majority opposition. How many battles of ideas can Bush afford to lose?
With the Miers nomination, the counterrevolution proceeds again by stealth. It is, on the fundamental issues, the only way it can proceed.