By Dan Balz
Washington Post Staff Writer
Friday, October 7, 2005
If there has been a unifying cause in American conservatism over the past three decades, it has been a passionate desire to change the Supreme Court. When there were arguments over tax cuts and deficits, when libertarians clashed with religious conservatives, when disputes over foreign policy erupted, reshaping the judiciary bound the movement together.
Until Monday, that is. Now conservatives are in a roiling fight with the White House over President Bush's nomination of White House counsel Harriet Miers to the high court. They fear that the president may have jeopardized their dream of fundamentally shifting the court by nominating someone with no known experience in constitutional issues rather than any one of a number of better-known jurists with unquestioned records.
The dismay among conservatives stems partly from the fact that so little is known about Miers, a well-regarded corporate lawyer, member of the Texas legal establishment, evangelical Christian and confidante of the president. But in a deeper way, it reflects the smoldering resentment about other administration policies -- from big-spending domestic programs to fragmentation over Iraq -- and enormous frustration that a president who prides himself on governing in primary colors has adopted a stealth strategy on something as fundamental to conservatives as the Supreme Court.
"No one has anything against her," said William Kristol, editor of the Weekly Standard and one of the first conservatives to register his disappointment. "But the idea that one is supposed to sacrifice both intellectual distinction and philosophical clarity at the same time is just ridiculous."
For more than two decades, conservatives have been developing a team of potential justices for the high court in preparation for a moment such as this. They point to jurists such as Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit, Judge Michael W. McConnell of the 10th Circuit and Judge Priscilla R. Owen, newly sworn in on the 5th Circuit, as examples of people who have not just paid their dues but also weathered intellectual battles in preparation for reshaping the Supreme Court.
Conservatives were deeply offended when presidential emissary Ed Gillespie told a gathering on Wednesday that some criticism of Miers has "a whiff" of sexism and elitism. They said there are any number of female judges who would have drawn an enthusiastic reaction from the right, and one former conservative activist noted that Owen, a hero among conservatives, went to law school at Baylor University, hardly an Ivy League institution.
The reaction to Miers has been in sharp contrast to the reception afforded new Chief Justice John G. Roberts Jr. when he was nominated. While Roberts did not come to the battle with a reputation as one of the activists in the conservative legal movement, conservatives were reassured by his experience in the Reagan and the George H.W. Bush administrations and dazzled by his brainpower. On that basis, they believed he was well equipped for the intellectual combat on the high court. Miers inspired no such feelings when she was nominated.
Bush's failure to look to conservatives on the appellate courts to replace Justice Sandra Day O'Connor proved to be a massive case of dashed expectations. "The feeling was after John Roberts that surely the president was going to have to go to the bench where there were all these very excellent people who are serving on the circuit court or scholars who have been grooming for this possibility for years and years," said Paul M. Weyrich, a leading voice in the conservative movement and one who has been openly skeptical of Miers.
Weyrich said he had once been told by Justice Clarence Thomas it was important not just to have conservatives on the court, but also conservatives who have "been through the wars and survived." Having won the White House and captured majorities in Congress, conservatives eagerly anticipated a fight in the Senate over a nominee like that and believed Bush would have the stomach for one.
From the White House vantage point, however, the very fact that Miers had not been through those wars was apparently part of her appeal -- she did not have a long record that Democrats could use as a weapon, as they did with such previous nominees as Robert H. Bork.
The conservative project to reshape the judiciary long predates this presidency. This only heightened the surprise and resentment that the president has asked all those who have been in the vanguard of that movement to sublimate their feelings and now march in lockstep behind someone on his word alone.
Moreover, some conservatives regard it as patronizing for Bush to suggest Miers will continue to share his views on legal philosophy long after he leaves the White Houses.
"With so much at stake, to many of us it seems ill-advised to nominate somebody that we're then told we should have faith in, when there isn't any evidence of intellectual rigor being applied to these contentious issues," said conservative activist Gary Bauer. "There are probably seven to eight names that have been looked to, have written wonderful decisions that are strong intellectually, compelling in their presentation. They are the kind of people you want to look to if you want to try to move the legal culture in America."
The uproar over Miers is particularly striking because it is aimed as much at the president as at his nominee and comes from that part of the party he has assiduously courted from the time he first ran for president. But conservative opinion leaders said he is bearing the brunt of pent-up frustration among conservatives, who watched as terrorism, the Iraq war, and now Hurricane Katrina led to massive growth in government and huge deficits under a president who ostensibly shares their small-government philosophy.
From the prescription drug bill to the failure to veto any spending legislation to what some conservatives regarded as a reincarnation of the Great Society in Bush's approach to reconstruction after Katrina, the president's credibility as a genuine conservative already was in question when he asked his loyalists to trust him on Miers.
Former House speaker Newt Gingrich (R-Ga.), who has written an op-ed piece urging conservatives to rally behind Miers, said he nonetheless understands why his ideological allies doubt the president. And he fears the White House may underestimate the reasons: "Do they understand that beyond getting past the unhappiness with this choice, there is a profound sense of discontent within the conservative movement?"