It all depends on the hearings.
Barring a withdrawal of her nomination, it’s going to come down to Harriet Miers’s ability to argue her own case before the Senate Judiciary Committee. If the American people decide she seems like a good person—sympathetic, wise, even-keeled, knowledgeable—she’ll be in; and if not, not.
What everyone forgets about the case of Robert Bork in his confirmation hearings is that regular people watched him, listened to the workings of his fabulous and exotic mind, saw the intensity, the hunger for intellectual engagement, caught the whiff of brandy and cigars and angels dancing, noticed the unusual hair, the ambivalent whiskers, and thought, “Who’s this weirdo?” They did the same thing with Arthur Liman in the Oliver North hearings. I am not saying Americans are swept by the superficial. I am saying Americans pick things up, and once they’ve picked them up, they don’t easily put them down. Anyway, public opinion moves and then senators vote “no,” or not.
So the administration can turn this around. Or rather Ms. Miers can. In her favor: America has never met her, she’ll get to make a first impression. Working against her: But they’ll already be skeptical. By the time of the hearings she’ll have been painted as Church Lady. There’s a great old American tradition of not really liking Church Lady.
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That having been said, the Miers pick was another administration misstep. The president misread the field, the players, their mood and attitude. He called the play, they looked up from the huddle and balked. And debated. And dissed. Momentum was lost. The quarterback looked foolish.
The president would have been politically better served by what Pat Buchanan called a bench-clearing brawl. A fractious and sparring base would have come together arm in arm to fight for something all believe in: the beginning of the end of command-and-control liberalism on the U.S. Supreme Court. Senate Democrats, forced to confront a serious and principled conservative of known stature, would have damaged themselves in the fight. If in the end President Bush lost, he’d lose while advancing a cause that is right and doing serious damage to the other side. Then he could come back to win with the next nominee. And if he won he’d have won, rousing his base and reminding them why they’re Republicans.
He didn’t do that. Why didn’t he? Old standard answer: In time of war he didn’t want to pick a fight with Congress that he didn’t have to pick. Obvious reply: So in time of war he picks a fight with his base? Also: The Supreme Court isn’t the kind of fight you “don’t have to pick.” History picks it for you. You fight.
The headline lately is that conservatives are stiffing the president. They’re in uproar over Ms. Miers, in rebellion over spending, critical over cronyism. But the real story continues to be that the president feels so free to stiff conservatives. The White House is not full of stupid people. They knew conservatives would be disappointed that the president chose his lawyer for the high court. They knew conservatives would eventually awaken over spending. They knew someone would tag them on putting friends in high places. They knew conservatives would not like the big-government impulses revealed in the response to Hurricane Katrina. The headline is not that this White House endlessly bows to the right but that it is not at all afraid of the right. Why? This strikes me as the most interesting question.
Here are some maybes. Maybe the president has simply concluded he has no more elections to face and no longer needs his own troops to wage the ground war and contribute money. Maybe with no more elections to face he’s indulging a desire to show them who’s boss. Maybe he has concluded he has a deep and unwavering strain of support within the party that, come what may, will stick with him no matter what. Maybe he isn’t all that conservative a fellow, or at least all that conservative in the old, usual ways, and has been waiting for someone to notice. Maybe he has decided the era of hoping for small government is over. Maybe he is a big-government Republican who has a shrewder and more deeply informed sense of the right than his father did, but who ultimately sees the right not as a thing he is of but a thing he must appease, defy, please or manipulate. Maybe after five years he is fully revealing himself. Maybe he is unveiling a new path that he has not fully articulated—he’ll call the shots from his gut and leave the commentary to the eggheads. Maybe he’s totally blowing it with his base, and in so doing endangering the present meaning and future prospects of his party.
Whatever the answer, history is being revealed here by the administration every day, and it’s big history, not small.
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Back to Ms. Miers herself, and the merits of her nomination. What would she be like on the bench? I know the answer. So do you. It’s: Nobody knows. It’s all a mystery. In considering who will fill one of the most consequential power positions in the country we are all reduced to, “I like this, I don’t like that.”
I like it that she’s run a legal practice: that she has real-world experience, a knowledge of the flow of money in America, of how it’s made and spent. I don’t like it that she’s never written an interesting thing about a great issue. I like it that she taught Sunday school. I like it that she’s not Ivy League. I don’t like it that she’s obscure. I like it that she works so hard. But I don’t like it if she’s a drone. I like it that she’s a woman. It doesn’t matter much that she’s a woman. Etc.
I don’t think it’s important to show loyalty to the president by backing his decision. This choice will live beyond his presidency. It’s important to get a justice who will add to the wisdom of the court, who will make it more likely that America will get a fair hearing before the bench.
Would she? I don’t know, you don’t know, the president who appointed her doesn’t know. Presidents are always being surprised by what losers they put on the bench.
I wonder in fact if Harriet Miers knows what Harriet Miers will be like on the court. I am referring to more than the fact that if confirmed she will be presented with particular cases with particular facts that spring from a particular context and are governed, or not, by particular precedents. And I’m referring to more than the fact that people change, in spite of the president’s odd insistence that she won’t. People do, for good and ill. Sometimes they just become more so. But few are static.
No one can know how the experience of the court will affect someone—the detachment from life as lived by the proles, the respect you become used to, the Harvard Law Review clerks from famous families who are only too happy to pick up your dry cleaning and listen to the third recounting of your boring anecdote. Everyone wants you at dinner. You notice that you actually look quite good in black.
And you become used to the idea that unlike everyone else in the country, you have job security. A lifetime appointment. When people have complete professional security they are more likely in time to show a new conceit. I don’t know why this is, but I think it’s connected to the fact that they’re lucky, and it seems somehow hardwired in human nature that when people are lucky they come to think they deserve it: It’s not luck, it’s virtue. And since it’s virtue my decisions are by their nature virtuous. I think I’ll decree that local government, if it judges it necessary, can throw grandma out of the house and turn her tired little neighborhood into a box store that will yield higher tax revenues. Thus Kelo v. New London is born. I decree it.
But I’m thinking of something different. I’ve noticed that we live in an age in which judges and legal minds seem to hide their own judicial philosophy from themselves. And that might explain why a Harriet Miers has reached the age of 60 and no one seems to know what she thinks.
Having a philosophy is all too big and too dangerous—paper trails, insights inadequately phrased that come back to haunt. Lawyers with ambition seem to have become adept at hiding their essential intellectual nature from themselves. They break the law down into tiny chewable pieces and endlessly masticate them. They break it down into small manageable bits, avoiding the larger abstractions. It’s one of the reasons they’re so boring.
In a highly politicized climate it’s not really convenient for lawyers to know their deepest beliefs and convictions. Robert Bork, serious thinker and mature concluder, became bork, living verb. Or rather living past-tense verb.
Only reluctantly and only with time do lawyers now develop a philosophy. They get on the court, and reveal it to us day by day. And reveal it, one senses, to themselves.
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And so the historical irony: Supreme Court justices are more powerful than ever while who and what they are is more mysterious than ever. We have a two part problem. The first is that no one knows what they think until they’re there. The other is that they’re there forever.
I find myself lately not passionately supporting or opposing any particular nominee. But I’d give a great deal to see Supreme Court justices term-limited. They should be picked not for life but for a specific term of specific length, and then be released back into the community. This would involve amending the Constitution. Why not? We’d amend it to ban flag-burning, even though a fool burning a flag can’t possibly harm our country. But a Kelo decision and a court unrebuked for it can really tear the fabric of a nation.