In Bush’s five years as president he hasn’t received any serious opposition from his own party. Sure, there’s been occasional grumbling even from his base, but his nomination of Harriet Miers marks the first time that conservative criticism has been this passionate and sustained. But why is the Right so opposed to her? Here are some possible explanations:
(1) The Right is desperate to appoint a justice who is clearly committed to overturning Roe v. Wade, and there’s nothing in Miers’ record to suggest that she fits the bill.
The problem with this explanation is that the Right was thoroughly unopposed to John Roberts, whose past is equally opaque. If the Right is so desperate for an unequivocally pro-life justice, where was the opposition to Roberts?
(2) Miers is not one of America’s “leading legal lights”. She may be a fine lawyer but she has no credentials as a legal scholar.
According to this explanation, the Right’s main priority is to appoint a brilliant legal mind, and, by most accounts, Miers fails this test. If this were true, it would explain their support of Roberts and their opposition to Miers. In my less cynical moments I’m tempted by this explanation, but this can’t be the full story. Surely what the Right most wants is a very conservative judge regardless of his or her legal competence. Indeed, the Right loves Clarence Thomas, who nobody would describe as a brilliant legal mind, precisely because they like how he votes.
(3) Opposition to Miers is really opposition to Bush.
Bush keeps asking conservatives to “trust” him. Until now, he has had their unflinching trust. But perhaps recent scandals and disasters are shaking the Right’s faith in Bush. If this is true, it marks a major turning point in his presidency. But is it true? I haven’t seen any evidence aside from the controversy over Miers to suggest that it is. So I’m withholding judgment until I see conservative opposition to Bush elsewhere.
Article comments
— go to most recent comments1 - JCB
I believe that the right's problem with Miers is her past affiliation with Gay Rights. The thing about Bush and his dwindling support from the conservatives of his own party is that they can now feel free to question his judgement: they have the confidence that Bush is an electoral lame duck.
Before, even though I believe they have internally questioned his judgements, their resolute purpose of advancing a nationwide conservative agenda was way more important. Bush's full support to that agenda, made him worth their while.
Just my 2cents from a far.
With All Due Respect
2 - The Theory
I read that she had been a Democrat... then became a Republican after becoming a Christian. My guess would be that she would lean fairly liberal for a Republican... and the Republican party wants someone uberconservative.
3 - Mike Valdman
I haven't heard anything about Miers and gay rights, so I can't comment on that. As for her being a Democrat, I do recall reading that she once made a small contribution to the Democratic party, but I haven't read anything about her actually having been a Democrat. And even if she had been a Democrat, most so called neo-conservatives were once Democrats, so I'm not sure merely having been a Democrat would be enough to explain the Right's opposition to her.
4 - Michael J. West
I read that she had been a Democrat... then became a Republican after becoming a Christian. My guess would be that she would lean fairly liberal for a Republican... and the Republican party wants someone uberconservative.
That's an interesting theory, but it doesn't hold up for the simple reason that Ronald Reagan was a former liberal Democrat (he idolized FDR) who became an uberconservative. Granted, Reagan's conservatism had nothing on Dubya's, but considering that the GOP reveres him as God's Agent in America, they couldn't complain too much about former libs.
5 - Michael J. West
Allow me to introduce possible explanation number 5:
5) Anyone who the Democratic leaders don't object to is automatically untrustworthy to the Republicans.
That's my theory--it's why so many are accusing him of "selling out" or "making a deal with the Democrats."
6 - Eric Berlin
Welcome to the party, Mr. Valdman.
I'd add two additional factors:
* Miers is replacing O'Conner, a crucial swing vote on a host of issues. Roberts, the brilliant scholar, replaced the mainstream conservative Rehnquist, so in many ways we had a status quo switch.
Miers is a different ballgame. She's not the accomplished legal mind that Roberts is, and conservatives can generally be nervous that they won't know where she'll vote.
Personally, I think Bush knows how she will vote so is, in effect, a Stealth Candidate. But conservatives are desperately afraid of another Souter.
* The Bush administration is tanking. I think this might be the most important factor of all.
I really thought and fully expected that Bush would choose one of the judges that almost got filibustered over the summer, and we'd be in for a Battle Royale. I think this would have been great for Team Bush as it would have done what he's always been able to do: rally his base.
Miers comes off as a weak, crony choice by a weak, battered President.
Therefore, I really think Dems just need to kick back and let it play out. A nuclear option showdown would have likely really hurt what is now becoming a resurgent Democratic Party.
7 - RJ
Bush blew it.
He could have embarrassed Senate Democrats by picking a clearly qualified, overtly-conservative, non-crony as his nominee. The Right would have loved it. The Left would have hated it. The Left would have tried everything in their power to block the nomination, including a possible filibuster. But the Right would have won in the end. And the USSC would have tilted a bit to the Right, which has long been a crucial goal for conservatives.
Instead, Bush nominated an apparently underqualified, idealogical wild-card, and a blatant crony. If confirmed, she might very well become another Souter. And now the GOP is tearing itself apart over this nominee, and the Dems are just sitting back and enjoying the spectacle.
Like I said, Bush blew it...
8 - Scott
The reckoning of GOP between the uber-conservative religious right types and the more moderate Republicans was long-gestating. The Miers nomination was simply the final straw that broke the camel's back. I think most of us could see that this had to occur at some time or another. Nothing but bad news for Republicans these last few weeks, that's for sure.
9 - Eric Berlin
I don't think the Dems would have been embarrassed, RJ, but I agree that they would have been put in a tight spot.
A unified GOP front in the Senate would have put the Dems in a terrible position, and likely would have led to some kind of split (a la Roberts). Conservatives would have gotten their way, and Bush would have received a much needed bump.
10 - Larry A. Sakin
I'm not entirely convinced that the ultra right really wants to overturn Roe v. Wade. Its a marvelous moneymaker for them, and something they can always use as a wedge issue in any future fight with Dems in elections. However, I think they do like the idea of chipping away at the protections Roe presents, and without understanding Meirs' position, the conservatives are understandably upset that they aren't getting the Thomas/Scalia they were promised. So I don't think Meirs works to their advantage on this issue either way.
I'm no conspiracy theorist, but I believe Bush tends to pick certain people in his administration for positions that he wants to count on further down the road. The administration is is a shambles right now, and Bush is likely to lose a great deal of support from Congress. With Rove dealing with his own possible indictment, he is distracted from preventing a future investigating commission from a thorough scrutinization of Bush's torture policy. Here is where having a key ally on the court can come in handy. Should an independent or congressional committee form to investigate torture and if Bush violated constitutional authority, the Supremes would likely be brought in to try and overrule any laws that will leave him vulnerable. Miers, Roberts, Scalia and Thomas will certainly side with Bush in such matters, and may have a heavy influence on Breyer, Kennedy and Souter.
11 - Eric Berlin
Larry, I've thought about your initial point (conservatives and Roe) myself. I'd bet their are true believers who want to see it overturned, while others enjoy using it as a neverending rallying cry.
12 - G. Oren
I think Eric is on the right track here. Bush could have appointed a strict constructionist with good credentials and won the fight in the senate, even with a dem filibuster. The GOP base would relish that fight.
Bush has never backed off a fight, though he's never had to use a veto until the other day, I think it's just another example of his arrogance - appoint a crony and send smoke signals to the religous right that she'll do what they want. Unfortunately for him, most of the opinion makers on the right are now taking this opportunity to break the traces and vent their collective spleen.
Whether this spat will cause the GOP senators to break their traces and reject his nominee remains to be seen.
BTW, Miers was a catholic (and a democrat) she was "born again" around 79, but didn't become a Republican until the early 90's.
13 - Bennett
One of the wonderful things about Kings and Supreme Court Justices is that once the are sitting in the chair (throne), the weight of the crown makes them think differently. They may very well abandon the positions expressed before confirmation, and operate from a mind set of liberty and justice, somewhat different from their mind set when in the employ of an administration.
This, I think, has the conservatives very unsure of Ms. Miers.
Great first post, and welcome!
14 - Michael J. West
I really have to wonder if the people who are so aghast at Roe v. Wade know that it only forbids states from outlawing abortion.
If Roe v. Wade were overturned, at least 25 states would keep abortion legal; people from the states where it was outlawed would simply go to a state where it was legal to have their abortions performed. I highly doubt that overturning Roe v. Wade would serously lower the number of abortions performed in this country.
15 - Scott
There is a definite segment of the population that does want Roe overturned. And, basically, many Republicans campaign on being pro-life to draw in that vote and when they are elected, do nothing to outlaw abortion as many of their supporters hope they would. Indeed, a rallying cry for the far right. Take it from me, a resident of the deep south.
16 - G. Oren
Mr. West makes a very good point - if Roe were overturned and the situation returned to the status quo ante, then we could see this issue debated on the state level - where it belongs anyway, in my view.
A consequence of the shifting of that debate to the state level would, hopefully, involve more serious debate and discussion - not the posturing and fingerpointing we see today.
I have very serious qualms about the long-term impact of the Federal government - via the court or legislation - establishing a "right to life" in law. Such a move removes from the states (and from families) the right to determine these things for themselves. I do not favor abortion, or euthenasia, on moral grounds, but I am suspicious of any attempt to make those moral judgements settled law for all my countrymen. At root, I think the religous right wants to use the langauge of natural rights - a pernicous doctrine of the enlightenment (think jacobins) - to establish an even further isolation of the "individual" from the natural law tradition of blood and family - ultimately a further breaking down of famial responsibility.
17 - Les Slater
I don’t see Bush as in such a bad position. I don’t think he feels an obligation to greece the skids for JEB to take his place. Then what does he have to lose?
He’s played the right wing like a fiddle. He never did anything of real value for them. OK, he supports, and signs, reactionary bills, knowing full well they will not get by the courts. He’s in favor of an amendment defining marriage as excusevely between a man and a woman, but everybody that is not intoxicated knows it has a snowball’s chance in hell.
His Iraq policy? We saw in Kerry what the Dems would do. The same, only better. We can see where Hillary would take us. Nothing would change.
People are upset by the war, but the war is bipartisan.
The government in general has lost support. The Dems are doing absolutely nothing, they do not have any alternative.
The government is in no position to take on Roe with a frontal attack. Bush knows that. If if put some crackpot ideolog in the Supreme Court all hell would break loose.
Where is the furious right to go? Form a new party? They will not get serious backing for that. Things aren’t at the stage for the rise of the extreme right. They have been way out on a limb. Mr. Bush has reminded them of that.
18 - Les Slater
The purpose of putting Roberts and Miers on the court is to guarantee that Roe will not be overturned.
19 - mike valdman
Lots of excellent comments! I'll try to respond to some of them.
Eric argues that much of the opposition to Miers stems from the fact that she's replacing O'Connor rather than Renquist. I disagee with this because, if you recall, Roberts was initially chosen to replace O'Connor, and there was nary a peep out of the Right.
In response to Michael, it seems to me that the Democrats' silence is more the effect than the cause of the Right's furious assault on her. On your second point, with State governments more or less in the hands of conservatives, I don't feel as secure in abortion rights as you seem to were Roe v. Wade overturned.
20 - Eric Berlin
Yes Mike, but the Right was always generally happy with Roberts. His paper trail was thin, but he was an on the record, down-the-line conservative judge, if not a screaming ideological one. His intellect and resume was top notch and his conservative credentials strong.
I also think that conventional wisdom held that there would be about two openings on the court during Bush's second term. So the stakes on #2 were bound to be higher. And they are.
21 - Baronius
One of the major divisions in the conservative movement is between the activists and the originalists.
Some people want an activist Republican court, dismantling the precedents of the last 50 years. This branch of conservatism is likely to talk about returning the country to its Christian roots. They oppose Roe because they see abortion as immoral. These people had no great passion for Roberts, but hey, there are only two ways a judge can rule, and they expect Roberts to choose the right side more often than not.
Another branch of conservatism opposes any judicial activism, from the right or left. These people hate the phrase "living Constitution". They oppose Roe as bad legal reasoning. Roberts appears to be everything they've been hoping for.
What does Miers offer either branch? Not much that I can think of. She doesn't have the credentials and mind of a Robert Bork, or the boldness of a Roy Moore. Neither side is restrained by its awkward alliance.
It's no so much about the depth as the breadth of disappointment. The Wall Street Journal, Pat Buchanan, George Will, Peggy Noonan, Ann Coulter, and National Review all have criticized the nomination. To an outsider, these may seem like identical people, but they represent pretty much every camp within the movement.
22 - volt
can we please move on from the ludicrous notion that liberals are "activist" judges and conservatives "originalist". an activist judge is basically a right wing catch phrase to rally the troops but makes about as much sense as calling a law that allows for the destruction of forests the healthy forests initiative.
were scalia and his brethren originalists when they ruled against their core states rights beliefs in favor of W in bush v. gore?
beyond the hypocrisy noted above is the problematic fact that the constitution does not give the supreme court the power to review the constitutionality of a law. only after some creative writing by chief justice john marshall in the 1803 case of marbury vs. madison did the court gain the power of judicial review. so a true originalist would not even believe that the supreme court could review laws passed by congress. yet, "originalist" scalia and thomas do not seem to have a problem reviewing cases.
but one need not go back in time 200 years to realize the entire argument is prima facie (on its face) bogus. republican appointed judges now control the majority of federal courts and and yet people continue to complain about activist courts. that alone should give anyone propagating the "activist" judges nonsense pause.
finally, for the life of me, i cannot understand why anyone would actually want a judge to even attempt to make his or her rulings in the context of life 200+ years ago. colonial america more closely resembles an underdeveloped african country than it does the u.s. today. things change and societies evolve which is exactly why the Founding Fathers included the ability to add amendments to the constitution.
surely the bible which is a static document influenced the founding fathers in their philosophy to make the constitution a living document. they rightly saw that a static document quickly becomes irrelevant as times change and societies evolve. evolution of thought is a good thing.
hence, let's avoid hypocrisy, apply common sense, and take the lessons of the founding fathers and do away with the term "activist" judges.
and as long as i am asking for the moon, i'd like to recommend that all those so vehemently opposed to abortion spend a little time and money helping the living people who are dying of diseases like AIDS and starvation in far greater numbers. thanks.
23 - Nancy
I'm interested in the suggestion in comment #10 that possibly (unless I'm misreading it) Bush is hedging his chances should someone attempt an impeachment somewhere down the line? God knows a lot of people think there's solid reason & evidence to try if only the Republicans didn't have a stranglehold on congress. It's an intriguing thought, & worthy of the long-term planning of, say, Cheney & Co.
24 - Baronius
Volt, I think you missed the point of my comment. I didn't say that all conservative judges are originalists; I made (what I thought was) a pretty clear distinction between the originalist conservatives and the activist conservatives.
There are also different kinds of originalists, and different kinds of left activists and right activists. Rehnquist and Scalia are more likely to rely on the text of the Constitution, whereas Thomas uses the writings of the Founders more frequently. Scalia is more of an activist than Thomas in his opinions, but is more likely to support precedent.
As for Bush vs. Gore as a states rights decision, I think you're misinterpreting it.
25 - Larry A. Sakin
For Nancy, comment #23
I don't think Mr. Bush needs to be concerned about impeachment, but he may be concerned about having his torture policy exposed to the public through a congressional or independent commission.
Bush, Cheney, Rove, et. al. in this administration are political animals- they're concerned about their party maintaining power in all three branches of government. Should it become widely understood that Bush and the neoconservatives fostered and encouraged abuse of prisoners, it would not play well with the American public, including their base. No one will want to be associated with those allegations.
Bush would likely seek constitutional challenges to current law and look to loyalists on the court to support those challenges.