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She has never been a judge and has never, to anyone’s knowledge, even proffered an opinion about the fundamental constitutional issues with which the Supreme Court grapples daily. But last Monday Harriet Miers was nominated to be one of only nine justices on the Supreme Court of the United States. She was, in President Bush’s words, “the best person I could find”.
The statement is risible on its face. And perhaps the most shocking thing about last week was that conservatives were the ones pointing this out. Here’s Trent Lott, about as hard right as you can find, a man who once publicly regretted the end of racial segregation and ran the Republican Senate: “Is she the most qualified person? Clearly, the answer to that is ‘no’.”
Others were less delicate: “Bush may as well appoint his chauffeur head of Nasa as put Miers on the Supreme Court,” exploded the right-wing blowhard Ann Coulter. Conservative columnist George Will put the case with more restraint but, in some ways, more viciousness. President Bush, he wrote, “has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections”.
In plain language, Will was essentially saying the president is too thick or too lazy to know what he is doing in one of the most important decisions a president has to make.
Why the outrage on the right? It’s explicable for both short-term and long-term reasons. In the short term this president has betrayed every conservative principle with regard to public spending. Most conservatives bottled up their dyspepsia before the election for partisan reasons, or because they believed that the war on terror was too important to be left to John Kerry. But now that spending is spiralling up again, and Bush seems utterly unconcerned, they’re angry.
In the short term, too, cronyism is a very powerful weapon for the Democrats to use against Bush. After the debacle of Michael Brown’s tenure at the Federal Emergency Management Agency (the Bush loyalist resigned last month over the disastrous response to Hurricane Katrina), conservatives are simply aghast that the president would offer up someone who has been essentially an indentured servant to the Bush family for the Supreme Court.
But the longer-term issue is the more profound one. In some ways, the conservative “movement” in America really came to life after the Supreme Court abortion decision, Roe v Wade. The court ordered that the right to abortion was vested in the constitution itself and that only trivial restrictions could be imposed upon it anywhere in the US. Hence America’s abortion laws are among the most liberal on the planet, despite considerable discomfort in the middle of the political spectrum and extreme hostility on the religious right.
One of the main reasons for voting for Republican presidents for the past three decades has therefore been the chance to appoint Supreme Court justices who would overturn that ruling and ratchet back the court’s influence on American politics. The trouble is, Republican presidents, including Reagan, Bush I and Bush II, have nominated jurists who have subsequently gone wobbly — or worse. Justices Kennedy, O’Connor and Souter — all picked by Republicans — all backed Roe. Kennedy, a Reagan appointee, even became the key judicial thinker behind extending civil rights to gay citizens.
The appointments are for life, so for two decades the conservative intelligentsia has been frustrated and desperate for a clear appointee they could trust. In John Roberts, Bush’s first nominee, they found a moderate conservative to replace William Rehnquist. They weren’t thrilled; but neither were they disappointed. Rehnquist was a conservative in any case — and so the balance of the court stayed the same.
But the seat vacated by Sandra Day O’Connor was the key swing vote on abortion and other matters — and was therefore the most important vacancy yet in the decades-long battle to win back the court. This was the opportunity conservatives had waited a lifetime for.
Bush blew it. He bypassed any number of superb judges to place his personal lawyer on the court. Hence the explosion of anger. Dick Cheney was reduced to telling Rush Limbaugh, the famous right-wing radio host, that in 10 years’ time conservatives would look back and be glad that Miers was nominated. “Why should we have to wait 10 years?” came the response. “Trust me,” Cheney concluded. This from a man who told the world to trust him that there were weapons of mass destruction stockpiled in Iraq.
Why did Bush do it? Why, when he is already reeling after Katrina, soaring oil prices, out-of-control spending and chaos in Iraq, would he pick a fight with his base?
Bush is a proud and stubborn man. He’d been told by every right-wing pundit that he couldn’t put his favourite Hispanic crony, Alberto Gonzales, on the court. Over a week ago the Republican pundit John Podhoretz exclaimed: “Nobody on earth aside from Bush would actually consider Gonzales or Miers a suitable Supreme Court nominee.” Bush is not one to be cowed by right-wing hacks. So he gave them the proverbial finger.
Will Miers pass the Senate? “I’m not convinced she’s going to make it, honestly,” the neoconservative guru Bill Kristol said last week. “Maybe she would do the president a favour by stepping aside.”
The hearings will be critical. If Miers charms the senators’ lapels off she might get confirmed. If she is revealed as completely unqualified to grapple with complex constitutional issues, Democrats might simply say she isn’t competent enough and Republicans that she isn’t ideologically reliable enough.
In that case she could go down to humiliating bipartisan defeat. The Senate has long since lost any fear of this president. It voted 90-9 last Wednesday to overturn Bush’s shameful tolerance of abuse and torture of military detainees.
Something is happening in Washington: the clothes covering Emperor Bush keep slipping quietly off. Alas, the only person who seems unaware of this is the president himself.
Andrew Sullivan is an author, academic and journalist. He holds a PhD from Harvard in political science, and is a former editor of The New Republic. His 1995 book, Virtually Normal: An Argument About Homosexuality, became one of the best-selling books on gay rights. He has been a regular columnist for The Sunday Times since the 1990s, and also writes for Time and other publications.
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