Hoping for More Pleasant Surprises, Where It Really Matters

The Miers nomination did seem very deflating. And maybe it will turn out that the pessimists are right.

Pro-lifers, in particular, have every reason to fear betrayal by politicians. Those of us whose #1 political issue is stopping abortion have been voting for Republicans for how many decades, with almost nothing to show for it. And this does look like the very last chance to get Roe v. Wade overturned.

Or, rather, Roberts PLUS this pick PLUS the next one all add up to the last chance. Bush has to get all three right. If he appoints even one justice who will vote to uphold Roe, it does seem like it’s pretty pointless for pro-lifers (or, for that matter, anyone else who was hoping the Supreme Court might be persuaded to read the Constitution literally) to keep helping Republicans get elected.

But some of the complaints I’m reading seem misguided. Take, for example, this anonymous comment from a “former Bush loyalist” now up at NRO’s Bench Memos:

Was [Miers] the reason I and many of my colleagues stood in the freezing rain on election day in Eastern Ohio to GOTV? Your sources say that Bush chose her because he thought she was the best that could be confirmed. That’s such a cop-out. . . . Harriet Miers may be conservative and she may be pro-life, but that alone does not merit a seat on the Supreme Court. Nothing in her background (or in the opinions of the people I know at the White House) gives any assurance that she is capable of becoming a stellar jurist, much less of inspiring and convincing those unschooled in an honest interpretation of the Constitution. Bush has squandered the goodwill we gave him (not to mention squandering the opportunity to appoint a great legal mind to the Supreme Court) and I fear that the GOP will suffer for it.

What do we really want? For the president’s conservative base to be energized, to have a nominee we can all love and admire and want to fight for—or to fix the Supreme Court?

I, personally, couldn’t care less whether the Supreme Court is full of stellar jurists and great minds; justices of mediocre intellect and basic intellectual honesty would be a real improvement over what we’ve got now. We already have at least two highly intelligent conservative justices. If neither Antonin Scalia nor Clarence Thomas could convince the too-clever-by-half majority of the Court that the Fourteenth Amendment does not give us “the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life,” it seems like they’re pretty definitively beyond the reach of rational argument.

What matters is how President Bush’s picks will vote–and whether he can get them confirmed.

It may be that Bush doesn’t care, or isn’t smart enough to make sure of, how Miers (or how Roberts, for that matter) sees the Constitution: as a document that means what it says, or as something more like an Etch-a-Sketch pad. But it may be that Bush is principled and smart enough to know what he’s doing.

I’m not advising anyone to simply trust the President. But I do notice that his Supreme Court nominations are going very differently from the pitched-battle-to-the-death sort of events I was anticipating. And, in the ambiguity and confusion, the Senate has actually confirmed, by an impressive margin, someone whose stated judicial philosophy I would have bet, before the Roberts nomination, was certain to trigger a last-man, last-round defense by the Democrats (and another opportunity for Arlen Specter to show his independence). So I’m going to keep hoping for more pleasant surprises, where it really matters—in the confirmations, and in the votes.


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