Thousands of years ago the Chinese general Sun Tzu said that the battle that is won before it begins is something the common man cannot comprehend. Each day it appears more and more likely that this is true of Bush’s pick of Harriet Miers to replace Justice Sandra Day O’Connor on the Supreme Court.
The initial reactions from the conservative end of the spectrum weren’t exactly joyous. Given so many qualified conservatives on the various Circuit Courts that he could have picked, it has been a let-down for everyone not to see one of those individuals get the nod. They’ve been there, put in their time and taken strong stands on the issues. This just seemed like more of a pattern of running away from what we believe – or at least not wanting to highlight it and fight for it. Why must we always have to go with a “stealth” nominee and hope for the best, when the other side never does?
When the President announced the nomination, my initial thoughts weren’t positive. I, as with most other conservatives, didn’t know much about her, much less her philosophy, while we did know a great deal about so many other potential nominees. And, at sixty years old, she would seem about ten years older than the ideal, given that we would like a nominee that could help stock a conservative bench for thirty years. On the first point, our fears may be unfounded, and on the second, given the wonders of modern medicine, she may live to be ninety.
You have to believe that after all of these years of close contact, Bush knows her very well and, given the incredible importance of this pick, knows her well enough to be confident in her philosophy.
Remember, this is the same president that has appointed staunch conservatives to the district and appeals courts, stuck by nominees that were being filibustered, and resubmitted their names to the Senate. If he’s been that committed to putting conservatives with an originalist mind-set on the bench at those levels, we should assume it’s important to him that he do so here.
We do know a good bit more about her at this point. We know that she has spent the last four years helping the President pick the judicial nominees we have all been so fond of. We know that she knows a commitment to strictly interpreting the Constitution and not legislating from the bench was/is paramount in those choices. We know now that she is a pro-life, born-again Christian who attends an evangelical church –obviously not a judicial qualification, but a clue to an individual’s philosophy.
We know that she opposed overturning Texas’ state sodomy laws, before it even became an issue for the Supreme Court last year. We know that she was involved in a major fight within the American Bar Association to attempt to reverse – or at least neutralize –that organizations pro-abortion stance.
We know that in her acceptance remarks she stated that “It is the responsibility of every generation to be true to the founders’ vision of the proper role of the courts in our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and help ensure that the courts meet their obligation to strictly apply the law and the Constitution.”
We also know that there is another major abortion case on the fast track to the Supreme Court and will likely be heard in the spring. Given that, a ruling would come down before the fall and next year’s mid-term elections, and then we’ll see what we’ve got and whether or not the conservative base will be “happy” – or mad enough to stay home.
The other major criticisms don’t amount to much in my book. So she’s “not a judge”, big deal. Neither were many other Supreme Court Justices, such as William Rehnquist. And the “cronyism” complaint seems a little impotent. As conservatives have shouted from rooftops for years, the President gets to choose. If he chooses to elevate someone from his staff for the job, how is that cronyism as opposed to elevating a deputy to a chief-of-staff position? And remember, Rehnquist was a Nixon administration attorney when he got appointed.
And as for qualifications, let’s dispense once and for all with this “most qualified person for the job” rhetoric. After every such pick, a reporter asks if they were the most qualified for the job and the President (whoever he is) always says yes. Please. There are lots of qualified candidates and, in light of that fact, each President is inevitably drawn back to political considerations.
In this case, you have to assume that the political consideration was to win by avoiding a fight, and yet get the type of justice that he wanted all along. Someone who could splinter and defuse the opposition, slip through without a fight, and then make everyone happy when she got there. Suz Tzu would be proud.
Don’t get me wrong. I would have loved to have someone with a record that we could throw in the Democrats face, have the battle, and show America what obstructionists they are and then win. I think it would have been a better short-term political move and would have helped energize the troops. But that is neither here nor there at this point – and has nothing to do with how a judge will think and act once they get on the bench.
In the final analysis these things don’t matter. What matters is that the President chooses someone who matches his own philosophy, which was endorsed by the American public. What matters is the Constitution, and having judges who will interpret it strictly in accordance with an understanding of the original intentions of those who wrote and ratified it. I hope that’s what we’ve got in Harriet Miers.