From the WSJ Opinion Archives
WONDER LAND
Hurricane Harriet
Downs Power Lines
Across Beltway
How did this run out of control so fast?
With Harriet Miers's nomination to the Supreme Court, George Bush has touched off a conservative hurricane that is snapping political power lines across the Beltway as this is written. On Wednesday, the anti-Bush tempest blew into the Senate, which by a 90-9 margin voted to impose Marquess of Queensberry rules on interrogations of terrorist detainees. All those Republican defections mean that the first clear victim of the Miers nomination is the president's freedom to wage war on terror. There will be others.
How did this run out of control so fast?
We'll start, before the match was struck, with the easiest way to understand the Miers nomination: George Bush decided to nominate himself to the Supreme Court.
Harriet Miers is to be George Bush's surrogate on the Court. Through her he guarantees, to the extent such a thing is possible, that he will deliver his promise to move the Supreme Court toward decisions based on the Founders "original" meaning of the Constitutional text.
Whatever one may think about this president, no one doubts that he is as good as his word. And no one doubts the sincerity of his assertions that the shape of the Court would be central to his legacy. Other than Alberto Gonzales, Mr. Bush's first choice for the Court, he knows Harriet Miers better than any other person in the American legal community. It is clearly Mr. Bush's belief that his personal knowledge of Harriet Miers makes it odds-on that she will serve out her life's term allied with the Roberts-Scalia-Thomas wing of the Court. Harriet Miers is the anti-Souter, the nominee who betrayed the president's father. And I'll bet she knows it.
Mr. Bush is well-known for his instinct to personalize public policy, to "go with" personalities he has judged congenial to his worldview. This style has served him well for the important calls--Vladimir Putin notwithstanding. In 1998, former Reagan advisor Martin Anderson invited Mr. Bush to visit the Hoover Institution in California. There, he met, and later bonded with, Condoleezza Rice. We got the Bush Doctrine. At Hoover, he met George Shultz and John Cogan, formerly of the Reagan OMB. We got the Bush tax cuts (though no Reaganesque spending cuts). So far so good.
So how did it come to pass that the personalized, instinct-based style of decision-making that suited this president so well has produced the most violent conservative rebellion of his presidency? Neither the federalization of education policy nor the bank-breaking prescription-drug entitlement caused an uproar like the Miers nomination. Ironically, I think the explanation for the conservative uprising over Harriet Miers is also quite personal. It is about George Bush's biography, a late-bloomer in politics, and it is about the most personal event in the modern conservative movement--the Bork nomination.
In 1982, five years before Ronald Reagan nominated Robert Bork to the High Court, law students at several top-tier schools founded the Federalist Society, dedicated to shaping a robust, coherent conservative theory of jurisprudence. Robert Bork was a society lodestar, the most formidable conservative jurist of his generation. The Democrats destroyed his nomination by personalizing their disagreement with him. After that, reforming and retaking the Court became a personal crusade for many conservatives.
While this battle raged in 1987, George Bush was a businessman in Texas. He was in no sense an active participant in the political or intellectual wars being waged in Washington. Seven years later, he entered Texas politics as governor.
This is not written to diminish Mr. Bush's political credentials. He is a twice-elected president. His lower-court appointments are excellent. It is to suggest, however, that at the moment at which these two Court vacancies brought us to a crucial juncture in our political history, Mr. Bush failed to distinguish between a political policy and a political institution.
For nearly 25 years, conservative legal thinkers have been building an argument that liberalism transformed the Court into an instrument of national policymaking more appropriate to the nation's legislative institutions. Roe v. Wade is the most famous of those policy decisions. And the most famous dictum justifying judicial policy innovation is Justice William Douglas's "penumbras formed by emanations"--from Griswold v. Connecticut.
Across these many years conservatives have been creating a structured legal edifice to stand against a liberal trend toward aggrandized federal power that began in the 1930s. Chief Justice William Rehnquist's "New Federalism," which devolves many powers back to the states, was one such example. Harriet Miers may share these reformist views, but her contribution to them is zero. Conservatives are upset because they see this choice as frittering away an opportunity of long-term consequence.
If instead the Senate had been given the chance to confirm someone who had participated in this conservative legal reconstruction and who would describe its tenets in a confirmation hearing, that vote would stand as an institutional validation of those ideas. This would become a conservatism worth aspiring to. In turn, Congress's imprimatur would follow the nominee onto the Court, into the judiciary and the law schools. A Miers confirmation validates nothing, gives voice to nothing.
The retort to conservatives in pain over Harriet Miers is: So what? She has publicly aligned herself with Originalism, the Bork school. Her first decision will be an Originalist home run into the upper right-field deck, and all this abstruse caviling will fade. With the Court still split 5-4, you need the Bush guarantee: "She knows the kind of judge I'm looking for." Just win, baby. The Left has it coming.
The right answer to this is that U.S. politics is scuzzier now than during the Bork nomination. The Senate Left's destruction of Miguel Estrada's nomination proved that. Replacing Justice O'Connor with a recognized judicial conservative--which by definition means risking an occasional nonconservative decision--would have helped restore the Court as the institutional tabernacle of the Constitution. With the Miers nomination the Court remains a political Colosseum. We'll win, but the price is a politics of permanent payback.
Mr. Henninger is deputy editor of The Wall Street Journal's editorial page. His column appears Fridays in the Journal and on OpinionJournal.com.
