Just the other day my friend Ken Mehlman, the chairman of the Republican National Committee, sent me an extremely urgent message. (He must be my friend, because he addressed me by my first name.) Following some predictable and perfunctory praise of Supreme Court nominee Harriet Miers—an “extremely well-qualified and fair-minded individual”—he got to the point.
“President Bush selected Ms. Miers after embarking on a thorough and deliberate thought process,” wrote the R.N.C. chairman. “This confirmation however promises to be much more contentious than the confirmation of Judge John Roberts. Before Ms. Miers was even announced many Democrat groups said they would oppose her. They have no interest in giving Ms. Miers a fair hearing or vote. They are promising to throw every punch, make every accusation and pressure every Senator to oppose this nominee no matter what her qualifications may be. We have to be prepared to counter their actions and that is why Harriet Miers needs your help.”
Leaving aside the diction and punctuation problems in this message of alarm—what is a “deliberate thought process,” anyway?—Mr. Mehlman seems ignorant of the fact that the angriest reaction to the Miers nomination is coming not from “Democrat groups,” but from right-wing comrades at his rear. Recalling how the President promised them another Antonin Scalia or Clarence Thomas, those ’wingers are wondering why he delivered an under-qualified crony with dubious conservative credentials.
They are outraged to hear the President claim that Ms. Miers, the White House counsel who has served as his personal attorney, is the “best qualified” attorney he could find to replace Sandra Day O’Connor. David Frum, the former Bush speechwriter who predicted that this might happen last July and who knew Ms. Miers in the White House, describes himself as “shaken” by the President’s choice.
Most of these hypocrites winked when Mr. Bush’s father offered the same kind of ridiculous encomium to Mr. Thomas, who certainly wasn’t the most-qualified possible nominee. Few on the right protested that egregious fraud because they wanted a reliable vote, regardless of his meager qualifications. Now they’re furious, not because the President has chosen a “complete mediocrity”—as Ann Coulter snarked—but because she is ideologically unreliable.
As she endures the abuse and condescension of her fellow Republicans, it is almost possible to feel sorry for Ms. Miers. Unfortunately, however, her right-wing critics have a point.
By all accounts, she is a perfectly capable and very industrious attorney, but that isn’t enough to earn a seat on the Supreme Court—or shouldn’t be. New York Post columnist John Podhoretz was simply stating the obvious when he declared that “nobody on earth aside from Bush would actually consider Miers a suitable Supreme Court nominee.”
Nor is slavish loyalty to the Bush family a sufficient credential, even in the extreme form exemplified by Ms. Miers, who once gushed that the President is “the most brilliant man I’ve ever met.” (Clearly she should get out of the office more.)
Ms. Miers reportedly worships at an evangelical church and has donated a few dollars to the anti-abortion cause, but she has also expressed support for gay civil rights and even gay adoption. Long ago, she even gave money to Al Gore. She is insufficiently zealous and partisan.
What the disgruntled conservatives dislike most about Ms. Miers is that she doesn’t belong to their exclusive club. She lacks connections with the Federalist Society, their cabal that seeks to impose its ideological test on judicial nominations. She certainly isn’t a member of their “movement.”
Yet this was supposed to be the movement’s big moment—an epoch-making nomination that would restore the Supreme Court to the social and economic philosophies of the Gilded Age, and abolish the heresies of the New Deal and the Great Society. That is what conservative commentators mean when they ramble on about “constitutionalism” and “originalism.”
If the grumbling on the right grows much louder, Ms. Miers may feel that she must start pandering to the extremists in her party. She will assure them that she is an “originalist” and so on, perhaps without fully comprehending what those right-wing code words mean.
Adhering to the “original intent” of the Constitution’s framers, as a matter of logic, means upholding their ancient prejudices about African-Americans, women and other beings deemed inferior two centuries ago. The “constitutionalist”—a term favored by members of the John Birch Society and worse not so long ago—disdains the hard-won guarantees of equality for all, women and minorities included, that Americans accept as the true meaning of the Constitution.
This poisonous theorizing deserves to be exposed in public. When Ms. Miers appears before the Senate Judiciary Committee for her confirmation hearings, someone should ask whether she thinks the Founders intended women to sit on the Supreme Court—and if not, why a truly strict constructionist should want to defy them now.
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