Posted on 10/04/2005 5:27:35 PM PDT by RWR8189
President Bush is a politician trained in strategic thinking at Harvard Business School, and schooled in tactics by experience and advice, including the experience and advice of his father, whose most lasting political mistake was the nomination of David Souter. The nomination of Harriet Miers to the Supreme Court shows that he has learned his lessons well. Regrettably, a large contingent of conservative commentators does not yet grasp the strategy and tactics at work in this excellent nomination.
There is a doom-and-gloom element on the Right which is just waiting to be betrayed, convinced that their hardy band of true believers will lose by treachery those victories to which justice entitles them. They are stuck in the decades-long tragic phase of conservative politics, when country club Republicans inevitably sold out the faith in order to gain acceptability in the Beltway media and social circuit. Many on the right already are upset with the President already over his deficit spending, and his continued attempts to elevate the tone of politics in Washington in the face of ongoing verbal abuse by Democrats and their media allies. They misinterpret his missing verbal combativeness as weakness.
There is also a palpable hunger for a struggle to the death with hated and verbally facile liberals like Senator Chuck Schumer. Having seen that a brilliant conservative legal thinker with impeccable elite credentials can humble the most officious voices of the Judiciary Committee, they deamnd a replay. Thus we hear conservatives sniffing that a Southern Methodist University legal education is just too non-Ivy League, adopting a characteristic trope of blue state elitists. We hear conservatives bemoaning a lack of judicial experience, and not a single law review article in the last decade as evidence of a second rate mind.
These critics are playing the Democrats’ game. The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness. Nor does the Supreme Court ideally consist of the nine greatest legal scholars of an era. Like any small group, it is better off being able to draw on abilities of more than one type of personality. The Houston lawyer who blogs under the name of Beldar wisely points out that practicing high level law in the real world and rising to co-managing partner of a major law firm not only demonstrates a proficient mind, it provides a necessary and valuable perspective for a Supreme Court Justice, one which has sorely been lacking.
Ms. Miers has actually managed a business, a substantial one with hundreds of employees, and has had to meet a payroll and conform to tax, affirmative action, and other regulatory demands of the state. She has also been highly active in a White House during wartime, when national security considerations have been a matter of life and death. When the Supreme Court deliberates in private, I think most conservatives would agree that having such a perspective at hand is a good thing, not a bad thing.
Other conservatives are dismayed that the President is playing politics (!), rather than simply choosing the “best” candidate. But the President understands that confirmation is nothing but a political game, ever since Robert Bork, truly one of the finest legal minds of his era, was demonized and defeated.
The President’s smashing victory in obtaining 78 votes for the confirmation of John Roberts did not confirm these conservative critics in their understanding of the President’s formidable abilities as a nominator of Justices. Au contraire, this taste of Democrat defeat whetted their blood lust for confirmation hearing combat between the likes of a Michael Luttig or a Janice Rogers Brown and the Judiciary Committee Democrats. Possibly their own experience of debating emotive liberals over-identifies them with verbal combat as political effectiveness.
In part, I think these conservatives have unwittingly adopted the Democrats’ playbook, seeing bombast and ‘gotcha’ verbal games as the essence of political combat. Victory for them is seeing the enemy bloodied and humiliated. They mistake the momentary thrill of triumph in combat, however evanescent, for lasting victory where it counts: a Supreme Court comprised of Justices who will assemble majorities for decisions reflecting the original intent of the Founders.
Rather than extend any benefit of the doubt to the President’s White House lawyer and counselor, some take her lack of a paper trail and a history of vocal judicial conservatism as a sign that she may be an incipient Souter. They implicitly believe that the President is not adhering to his promise of nominating Justices in the mold of Scalia and Thomas. The obvious differences between Souter, a man personally unknown to Bush 41, and Miers, a woman who has known Bush 43 for decades, and who has served as his close daily advisor for years, are so striking as to make this level of distrust rather startling. Having seen the Souter debacle unfold before his very eyes, the President is the last man on earth to recapitulate it.
He anticipates and is defusing the extremely well-financed opposition which Democrat interest groups will use against any nominee. Yes, he is playing politics by nominating a female. A defeated nominee does him and the future of American jurisprudence no favors. By presenting a female nominee, he kicks a leg out from under the stool on which the feminist left sits. Not just a female, but a career woman, one who has not raised children, not married a male, and has a number of “firsts” to her credit as a pioneer of women's achievement in Texas law. Let the feminists try to demonize her.
If they do so, almost inevitably, they will seize on her religious beliefs and practice. Some on the left will not be able to restrain their scorn for an evangelical Christian Sunday school teacher from Dallas, and this will hurt them. They will impose a religious test against a member of a group accounting of a third of the voting base. Speculation on her being a lesbian has already started. "She sure seems like a big ol' Texas lesbian to me," as one of the Kos Kidz put it.
They are going to make themselves look very ugly.
The President must also prepare himself for a possible third nominee to the Court. With the oldest Justice 85 years old, and the vagaries of mortality for all of us being what they are, it is quite possible that a third (or even fourth) opportunity to staff the Court might come into play. Defusing, demoralizing and discrediting the reflexive opposition groups in the Democrats’ base is an important goal for the President, and for his possible Republican successors in office.
Then there is the small matter of actually influencing Supreme Court decision-making.
This president understands small group dynamics in a way that few if any of his predecessors ever have. Perhaps this is because he was educated at Harvard Business School in a legendary course then-called Human Behavior in Organizations. The Olympian Cass Gilbert-designed temple/courtroom/offices of the Supreme Court obscure the fact that it is a small group, subject to very human considerations in its operations. Switching two out of nine members in a small group has the potential to entirely alter the way it operates. Because so much of managerial work consists of getting groups of people to work effectively, Harvard Business School lavishes an extraordinary amount of attention on the subject.
One of the lessons the President learned at Harvard was the way in which members of small groups assume different roles in their operation, each of which separate roles can influence the overall function. The new Chief Justice is a man of unquestioned brilliance, as well as cordial disposition. He will be able to lead the other Justices through his intellect and knowledge of the law. Having ensured that the Court’s formal leader meets the traditional and obvious qualities of a Justice, and is a man who indeed embodies the norms all Justices feel they must follow, there is room for attending to other important roles in group process.
According to a source in her Dallas church quoted by Marvin Olasky, Harriet Miers is someone who
taught children in Sunday School, made coffee, brought donuts: "Nothing she's asked to do in church is beneath her."
As the court’s new junior member, the 60 year old lady Harriet Miers will finally give a break to Stephen Breyer, who has been relegated to closing and opening the door of the conference room, and fetching beverages for his more senior Justices. Her ability to do this type of work with no resentment, no discomfort, and no regrets will at the least endear her to the others. It will also confirm her as the person who cheerfully keeps the group on an even keel, more comfortable than otherwise might be the case with a level of emotional solidarity.
But there is much more to it than group solidarity, important though that ineffable spiritual qualty may be. Ms. Miers embodies the work ethic as few married people ever could. She reportedly often shows up for work at the White House at 5 AM, and doesn’t leave until 9 or 10 PM. I have no doubt that she will continue her extraordinary dedication to work once confirmed to the Court. She will not only win the admiration of those Justices who work shorter hours, she will undoubtedly be appreciated by the law clerks who endure similar hours, working on the research and writing for the Justices. These same law clerks interact with their bosses in private, and their influence intellectual and emotional may be more profound than some Justices might like to admit.
The members of the Supreme Court all see themselves as serving the public and the law to the best of their abilities. Their self-regard depends on their belief in the righteousness and fairness of their deliberations. They must listen to the arguments of the other Justices. But their susceptibility to viewpoints they had not yet considered is matter of both an intellectual and emotional character. Open-mindedness uusally requires an unfreezing of deeply and emotionally-held convictions.
Having proven herself capable of charming the likes of Harry Reid, leader of the Senate Democrats, is there much room for doubt that Harriet Miers is capable of opening up opponents emotionally to hear and actually consider as potentially worthwhile the views of those they might presume to be their enemies?
George Bush has already succeeded in having confirmed a spectacularly-qualified intellectual leader of the Court in Chief Justice Roberts. If conservatives don’t sabotage his choice, Harriet Miers could make an enormous contribution toward building Court majorities for interpretations of the Constitution faithful to the actual wording of the document.
Thomas Lifson is the editor and publisher of The American Thinker.
Rush read part of this today.
He said, "The left hates Miers and the right hates Miers... That tells me she must be the best appointment in the last 150 years."
I would invite you to read my last two columns.
I didn't get to listen to Rush today.... what was his reaction and/or commentary to this essay? Thanks.
"President Bush is a politician trained in strategic thinking at Harvard Business School, . . ."
"The GOP is not the party which idolizes Ivy League acceptability as the criterion of intellectual and mental fitness."
Heh. There's no spinning this one into acceptability.
But for her job has WH counsel--a job Bush gave her--this nominee has credentials that any of several hundred attorneys in this country can match.
We're better than this.
A fine lawyer does not an outstanding Supreme Court justice necessarily make. And that's what we who have supported Bush deserve.
OK, crap so far!
Spin, spin, spin.
She's 60!!!
There is the possiblilty of another vacancy on the court during Bush's Presidency. Who Bush chooses should be influenced on which judge vacates the Court.
Here are some possiblities:
Antonin Scalia- Scalia has been passed over for the position of Chief Justice and he's 69 y/o. Also, he may want to leave while Bush is in office, since things are not going well for Republicans. If this happens, Bush should nominate Michael Luttig, a Constitutional conservative whose brilliant intellect would strengthen the conservative wing even if doesn't change ideologically.
Anthony Kennedy- Kennedy is getting on in years. And he presumably doesn't want a Democrat to name his replacement. His record is rather gray and mediocre, but he's far from being the worst on the court. Karen Williams would be the ideal choice here, increasing the number of women while increasing its conservativism and intellectual gravitas.
John Paul Stevens- A RINO named by Gerald Ford when the Senate had a 62 to 38 Democrat majority, Stevens was an appointment of expediency turned bad. He turns 85 and, while his health appears to be good, you never know at that age. Given Stevens liberalism, Bush can afford to put confirmability first in filling this vacancy. Chances are, most conservatives could live with an Alberto Gonzales appointment in this particular instance. And we don't know for certain that Gonzales is pro-abort. In any case, he would certainly be an improvement on Stevens.
Excellent oped. This sums up the reality very well:
It should be obvious that for his second nominee, "President Bush has to nominate a stealth candidate or take defeat in the senate. There are many conservatives who would prefer that President Bush appoint someone who can not be confirmed. That would start a fight with the Democrats that only the Democrats can win.That is pure "Stuck On Stupid." It is a fact.... many Conservatives would rather fight and lose than outsmart and win."
Wow...thanks for posting this....a reasoned, well-written discussion about the nomination that flies in the face of much of the 'doom and gloom' that has been going around the last 2 days.
I believe the World Court support was one of Farah's delusions and has been debunked.
I agree and disagree here.
First, I think we do have a bit too much bloodlust on our side. We were itching for a fight and we were mad that we did not get one.
Second, the President has kept all his promises made to the base. He is an honorable man. He asked us to trust him with Miers and we should.
However, I also agree with Rush that a fight with the Libs over a clearly conservative candidate would be quite educational for the public. It is important that we keep educating the public about why we believe in certain things and why the left believes in nothing more than the moment.
When Bush ran in 2000, we knew we were getting a man that would not fight back with the force and energy we wanted. We knew that we were getting a conservative that wanted to set a "new tone". Why do we expect different now?
He fulfilled his promise --- Miers is not another Souter - guaranteed.
Short answer: Rush back tracked considerably from his negative outlook of yesterday.
There are some key decisions coming up. The Democrats and RINOs have enough votes to decline to approve the nominees we really want. Their goal is to convince Sandra Day O'Connor to stay on to make those rulings by refusing to confirm people like Owen, Brown, Luttig, etc.
President Bush's goal is to get someone on board before those rulings who meets his criteria (judges like Scalia, Thomas). He knows Harriet Miers. His father did not know David Souter. It is understandable that conservatives are very concerned and emotional about this. Bush's legacy, not to mention the fate of the Republic, rests on these judicial appointments (and confirmations).
" believe the World Court support was one of Farah's delusions and has been debunked."
If so please post link- thanks in advance
I agree totally with your claim.
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