2005 Year in Review

The Supreme Court - what's that all about, anyway?

Harriet Miers pulled her nomination for associate justice of the Supreme Court. It was a controversial choice, particularly for social conservatives. What does her nomination mean and what's next?

Harriet Miers suffered from several problems. She lacked experience on constitutional issues. Although a capable lawyer, she had never had a case before the US Supreme Court. She hadn't written scholarly papers for a law school. She had never been a judge.

Her qualifications seemed to many to be that she was liked personally by President Bush, for whom she works as the President's lawyer. This, of course, led to charges of cronyism, that is “appointment of political hangers-on to office without regard to their qualifications.”

In addition, Ms. Miers didn't excite the social conservative wing of the Bush coalition. This means that social conservatives were not sure how she would vote on issues like abortion and gay marriage. To this group, the choice of a Supreme Court justice that would overturn the roe v. wade abortion ruling is the most important issue.

Why did President Bush nominate someone who disappointed such a core constituency?

Remember that President Bush has built a political coalition out of groups who often have different goals. In addition to social conservatives, there are economic conservatives who want low taxes and reduced government spending. They want reduced governmental interference in business and often are not too concerned with or openly hostile to issues like the environment, such as global warming, which may cost them profits. For this group, social issues like abortion are not that important. They prefer a justice that will rule positively on business issues, like Justice O'Connor.

I think the choice of both Justice Roberts and Harriet Miers show President Bush's true interest – and that isn't with the social conservatives. Both of these choices are pro-business candidates. Ms. Miers was a corporate lawyer, defending clients such as Microsoft.

President Bush does not have a personal interest in overturning Roe v. Wade (possibly the opposite). His proposal for a constitutional amendment banning gay marriage was done in a half-hearted way. He didn't use any political capital in its cause (which is really doomed from the start anyway). If you are a social conservative and you voted for President Bush thinking that he was going to nominate justices for the Supreme Court that would overturn Roe v. Wade – you've been had.

The Republicans need social conservatives to vote for them in elections, but many of the 'country club' conservatives, like President Bush have as their primary interest large business and people with wealth. That's why the tax cuts and his proposal to change social security got so much attention instead of social issues, like abortion.

In addition, the two nominees, Roberts and Meiers, are individuals that have their primary experience working for the Executive branch of the government. They have a history of defending Executive power.

President Bush is someone who has greatly expanded the role of the Executive at the expense of Congress. A good example of this is the battle between Congress and President Bush over the use of torture. Congress, led by Senator McCain, want to specify the rules on torture. The White House wants to maintain that power for themselves. With Miers and Roberts on the Supreme Court, this issue is more likely to be decided in favor of the Executive, that is, President Bush.

So, who's next? I think there are two choices for President Bush. First, he could nominate a strongly anti-abortion justice who could bring the social conservatives back in the fold. This would probably lead to a fight with moderates and a filibuster. I think this is most likely, given President Bush's current political weakness.

The other possibility is that he could choose a well-qualified conservative, like John Roberts who doesn't have a long record for pro-choice Senators to pick apart.

I think a good choice politically for President Bush would be Senator Lindsey Graham of South Carolina. He was a military lawyer for years, is fluent in legal issues and has considerable experience as a congressman and Senator. The most important factor, perhaps, is that Senators are more likely not to criticize one of their own.

by John Legler, Guest Columnist
October 27, 2005