Conservatives, libertarians and other professed believers in limited, constitutional government have had many reasons to be appalled at the George W. Bush administration. For starters, government spending has gone through the roof, the president has further federalized education, he has yet to veto a single bill of any type, and he continues to wage a foreign war that started as a pre-emptive action.
“But at least there is one thing we can count on with President Bush,” these right-leaning Bush critics have said. “He is good on judges.” Meaning, of course, that he appoints federal judges who take a strict constructionist view of the U.S. Constitution.
Liberals take a “living and breathing” approach to the Constitution, meaning that they believe the nation’s founding document changes as times change. That turns the Supreme Court into a super-legislature, in which the majority can promote vast social changes beyond what the founders of this nation envisioned.
Although there are various schools of thought among conservative judges, they all tend to agree that the whole purpose of a Constitution is to set in stone certain principles from which the nation should not deviate. The role of the courts, then, is to interpret laws in the context of what the founders approved and intended.
With the nomination of John Roberts as chief justice, conservatives were pleased. He has a long record of constitutional thinking and reasoning, and his reasoning is consistent with the strict-constructionist view, even if there are some cautions about his favoring a strong executive branch. However, with the nomination of Harriet Miers to replace retiring Justice Sandra Day O’Connor, President Bush is facing a revolt of conservatives, including many Republican senators and the party’s base.
Many of the long-suppressed criticisms of the president, including such wide-ranging concerns as the war and government spending, are coming forth on talk shows and in conservative publications. Most conservatives of any note are critical of the president these days. The administration seems stunned by the response, but the reason for it is not hard to understand.
It gets back to our initial point. Conservatives have put up with a lot of nonconservative governing from this president because they know he appoints the kind of judges they like, the kind that could make a mark on society long after Bush is in a retirement home. Now he has betrayed them on this, and there isn’t any obvious reason why those on the right need to stay quiet.
Miers appears to be a highly skilled government and private attorney and someone of strong character. As the president notes, she rose to great heights in the male-dominated Dallas legal scene. That’s great, but she has no discernible legal philosophy. Indeed, as Wall Street Journal editorialist John Fund points out, she has spent her career avoiding letting her personal opinions show. She has no record of constitutional thinking or arguing. She is, as many critics point out, largely a Bush crony, someone whose late career has been devoted to supporting this president.
Fund goes through the depressing list of Supreme Court appointees where the Republican president asked the conservative base to trust him that the nominee was conservative: David Souter, Harry Blackmun, Anthony Kennedy, Earl Warren, William Brennan. That record does not exactly inspire confidence in Bush’s nominee.
Those who believe the court is the upholder of the Constitution rather than a sort of grand legislature should keep the pressure on the White House. If the president can’t get the judges right, what reason is left for those on the political right to support him?