ARC's 1st Law: As a "progressive" online discussion grows longer, the probability of a nefarious reference to Karl Rove approaches one

Sunday, October 09, 2005

Steyn on Bush, Miers, and the Conservative Split

Mark Steyn has a great column in today's UK Spectator regarding the Harriet Miers nomination. Given that the readership is almost entirely British, he has to explain some of the fundamentals surrounding the issue. If you don't want to register for the Spectator, you can try some of the passwords available at

Has Bush blown it?
Mark Steyn
New Hampshire

Any port in a storm, especially after the storm has passed. I said in the Telegraph the other day that the minute Hurricane Katrina hit, the media started scampering around like Munchkins singing ‘Ding Dong, The Bush Is Dead’. They always do, and it always fails. In terms of destroying Bush and the Republicans, Katrina was a total bust. In so far as it has any political impact, it’s likely to make Louisiana less Democrat. That’s it.

So the problem remains: how to slay Bush. And if this last week is anything to go by, it looks like Democrats are going to be denied that pleasure, and it will fall instead to conservatives to reduce the Bush presidency to rubble. Conservatives are mad at Bush, and the theory goes that next November they’ll stay home and the GOP will lose Senate and House seats. Of course, conservatives have been mad about a lot of Bush policies for a long time — education, immigration — but, in fairness to him, he campaigned as a massive federaliser of the school system and as a big nancy-boy pushover for illegal Mexicans. So we can’t complain we were misled.

On the other hand, he also said that, when it comes to Supreme Court justices, he’d appoint jurists in the mould of Clarence Thomas and Antonin Scalia — ‘conservative’ judges or, at any rate, strict constructionists, who don’t claim, as so many judges do, to be able to detect constitutional rights to abortion and sodomy in an 18th-century parchment. Britons often find it hard to understand why Americans of Left and Right make such a big deal about judges, but the fact is that much of the stuff the Left likes is hard to get elected on — gay marriage, racial quotas, partial-birth infanticide — and the courts play a critical role in advancing a ‘progressive’ agenda with minimal appeal to voters under the guise of constitutional ‘fairness’. Stephen Breyer, one of the nine Supreme Court justices, dislikes the term ‘judicial activism’ and prefers to see what he does as part of a ‘democratic conversation’ that’s good for the health of the republic. The Right, not unreasonably, thinks the democratic conversation was held earlier, during the election and then in the legislature and that, having passed a law forbidding, say, partial-birth abortion, they shouldn’t then see it overturned because Justice Breyer wants to have the last word in the ‘democratic conversation’.
For what it’s worth, my sense is that Harriet Miers will be, case by case, a more reliable vote against leftist judicial activism than her mercurial predecessor, Sandra Day O’Connor. Why do I say this? Well, she’s a strong supporter of the right to bear arms. The great Second Amendment expert Dave Kopel says you have to go back to Louis Brandeis 90 years ago to find a Supreme Court justice whose pre-nomination writings extol gun rights as fulsomely as Miss Miers. According to an old boyfriend, Judge Nathan Hecht of the Texas Supreme Court, she packs heat — a Smith & Wesson .45 — which I can say with certainty the other lady justice, the far-left Ruth Bader Ginsberg, never has. She is also very opposed to abortion, and a generous contributor to pro-life groups.

In other words, what seems to be emerging is a woman Bush responds to as a fellow cultural conservative and evangelical conservative (she’s a born-again Christian) rather than as a judicial conservative — a label Judge Bork dislikes, preferring quite correctly that we distinguish judges not as conservative or liberal but as either originalists or judicial activists. I find it hard to discuss Harriet Miers seriously in those terms, but on balance she seems likely to vote the right way for whatever reasons. She’s thus another representative of Bush and Karl Rove’s belief in incrementalism — that the Republican majority can be made a permanent feature of the landscape if you build it one small brick at a time. Miss Miers is, at best, such a brick, at a time when conservatives were hoping Bush would drop a huge granite block on the court. But, given that she started out as a Democrat and has been on the receiving end of the partisan attacks on the administration for five years, she seems less likely than any detached effete legal scholar to be prone to the remorseless drift to the Left that happens to Republican Supreme Court nominees.

As many readers of this conspiracy blog will know, I tend to agree with Steyn on this one. I was amazed by the kneejerk criticism of the Miers nomination and think we will find out in due course whether she'll be qualified for the bench (during the hearings). In addition, I think we should trust W. on this, given that he's not exactly been the Third Wayer when it comes to judicial appointments.

I do have some concerns regarding Harriet, specifically
  1. her position on the quota system at the University of Michigan Law School. If she agrees with O'Connor's "Affirmative Action is temporarily Constitutional, say for 30 years or so," she not only proves herself to be an unreliable constructionist, but also a doofus. (Yes, O'Connor was a doofus in that ruling...)
  2. The Gonzalez Problem - Similar to former White House Counsel Alberto Gonzalez, she may have to recuse herself should cases appear before the court involving the rights of terrorists, given that she may have been instrumental in establishing the policy which the litigants are challenging.

Only time will tell... I just wish the "Let's Have A Fight" crowd would chill out.

Your Co-Conspirator,
ARC: St Wendeler