WRITING IN the Wall Street Journal, editorial board member Melanie Kirkpatrick counsels her “friends on the right” to “brew themselves a cup of chamomile tea and go back and review the roster of Bush judges.” Such an exercise may help them “sleep better” with the nomination of Harriet Miers to the Supreme Court. “Any president is due some deference under the Constitution in his choice of judges,” Kirkpatrick says, “and given his record on picking judges, this president deserves more than he has received.”
In other words, trust Bush–or at least wait until the Senate hearings before passing judgment on Harriet Miers. For over two weeks now we’ve heard White House aides and pro-Miers conservatives parrot some variation of this argument. A charitable interpretation might be paraphrased as follows: Just be patient–when Miers goes before committee, she’ll dazzle everyone with her punctilious mastery of constitutional law. A not-so-charitable interpretation might go like this: As long as she votes our way on the Court, what more do you want? So let’s quit all this elitist nonsense about “qualifications” and “cronyism” and give her a chance.
If the pro-Miers forces mean to imply the former, then yes, they are correct to say the president deserves at least a modicum of deference in his selection. But if they mean the latter–that how Miers will vote is all that matters, and her credentials be damned–then conservatives should be aghast.
Republicans have spent much of the past quarter century establishing themselves as the Meritocracy Party: the party that rejects “dumbing down” American institutions, eschews race- and sex-based quotas, supports merit pay for schoolteachers, and endorses rigorous standards in all spheres of American life, the Supreme Court included. Yet when it comes to George W. Bush’s second High Court nominee, the Meritocracy Party finds itself in quite a pickle.
A conservative president–whose broader agenda most Republicans still favor–has tapped a patently under-qualified candidate. But the White House insists she will adjudicate as a strict constructionist, not unlike Antonin Scalia, Clarence Thomas, and the newly-minted (though still untested) chief justice, John Roberts. The administration also touts her evangelical Protestantism, a not-so-subtle assurance to pro-lifers. Meanwhile, First Lady Laura Bush and White House adviser Ed Gillespie have suggested that opposition to the nominee might be a function of sexism.
It is useful to construct a hypothetical here. Imagine a Democratic president, one with fairly solid street-cred among his party’s base. Imagine he stated his intent to nudge the Court in a more liberal direction. Imagine he had once named John Paul Stevens and Ruth Bader Ginsburg as his favorite justices, the models for his own picks. Imagine, then, that this president chose his own White House counsel for the Court, a woman with no record of constitutional jurisprudence. Imagine that, to appease pro-choicers who were skeptical of how she’d vote on Roe v. Wade, the president mentioned that his nominee was a Jewish woman like Justice Ginsburg (wink-wink). Imagine, finally, that the first lady and a top White House staffer painted her opponents as sexists.
How would Republicans react? They’d fly into high dudgeon. They’d condemn the cynical use of religion. They’d blast the nomination of a White House insider with no ostensible background in studying the constitution. They’d lament the triumph of cronyism and blind partisanship over merit and intellectualism. They’d thump their chests and affirm that Republicans, not Democrats, were the Meritocracy Party–as witness the High Court hullabaloo. And, on each count, they’d be convincing.
So when Harriet Miers’s defenders insinuate that her qualifications are meaningless–when they hint that adding a reliably conservative vote to the Court is all they care about–they do both the nominee and American conservatism a disservice. Leave aside the fact that Supreme Court justices rarely prove as “reliable” as they might initially seem. If Miers lacks the sweeping constitutional expertise needed to persuade wavering justices on individual cases, it’s hard to see how, over the long term, she’ll help move the Court in a more conservative, or “constitutionalist,” direction. (After all, Republicans won’t be picking Supreme Court justices forever.)
Conservatives, moreover, are typically among the most full-throated enthusiasts for America’s vaunted meritocracy. They have led the charge to end anti-meritocratic policies such as affirmative action. And, in so doing, they have successfully molded the GOP into the Meritocracy Party. But at this critical juncture, their support for a Republican president has led them to trumpet anti-meritocratic arguments–the sorts of arguments conservatives would quickly scorn if they were made by liberals. Indeed, one often wonders if pro-Miers conservatives would accept any lawyer for the Court who promised to vote “the right way.”
Harriet Miers may well possess the myriad talents and capabilities that President Bush claims she does. But let’s not pretend her constitutional credentials–or the lack thereof–are immaterial. Conservatives, of all people, should know better.
Duncan Currie is a reporter at The Weekly Standard.
