Why are so many members of the conservative intelligentsia so upset with ...

[DavidEBernstein at aol.com]

Let's see, how would the "liberal intelligentsia" have felt if, instead of 
nominating Ginsburg or Breyer, Clinton had nominated a managing partner in the 
Rose Law firm who had donated to George Bush's 1980 presidential campaign, was 
Clinton's personal lawyer, was a big muckety-much in the pro-free market 
Chamber of Commerce (analogous to the ABA), had publicly opposed affirmative 
action, had denounced the ACLU (as Miers' more or less denounced the Federalist 
Society, whose supporters could come up with no better rationale for her 
appointment than that she was a female Unitarian who had privately expressed the view 
that abortion should be legal, and who otherwise had analogous credentials and 
background to Ms. Miers, except with the opposite ideological tinge?  I'm sure 
they would be jumping for joy...

In a message dated 10/13/2005 11:51:27 AM Eastern Standard Time, 
james.wilson at law.csuohio.edu writes:
       I am simultaneously puzzled and amused by the widespread conservative 
outrage against Harriet Miers.   Aside from the understandable concern about 
her less than stellar resume, what could be motivating some of these critics?   
 Here a few possibilities (which are not meant to apply to any particular 
person):

    1.  Many members of the conservative intellectual elite are angry with 
President Bush, because he appears to be squandering their political capital 
just as he has squandered virtually everything else: the budget surplus, national 
unity after 9/11, the military victory in Iraq,  natural resources, a 
relatively effective FEMA, and worldwide sympathy after 9/11.   They thought they 
were going to run the world for the foreseeable future, but their time and 
influence may be more limited.

    2.  Many are upset that he did not pick a member from the vanguard of the 
conservative movement.   Just as the neoconservatives are losing control of 
foreign policy by being kicked upstairs to the World Bank and the United 
Nations while the new Secretary of State negotiates with North Korea, so their 
domestic counterparts may no longer be getting the juiciest domestic plums.   

    3.  By appointing someone who is obviously a political sychophant, 
President Bush undermined the conservative romantic trope that they implement the 
law and do not engage in politics, even while concocting their sweeping 
constitutional theories.

    4.  Many are upset because there is a strong possibility that neither 
Roberts nor Mier will lead the great constitutional revolution that would imbed 
cutting-edge conservative ideology into the Constitution for over a generation. 
 These "conservative radicals" are not satisfied with eliminating Roe v. Wade 
and Lawrence: they want to roll back virtually all progressive legislation 
since the beginning of the New Deal.  They might not have three Justices on the 
Court (with periodic support from Justice Scalia) who are willing to use a 
form of originalism that would lead to massive judicial acitivism (under at least 
two definitions of "judicial activism": the Court's frequently telling the 
elected branches what to do and the Court's overruling or ludicrously 
distinguishing massive amounts of precedent).  Instead, there is a reasonable chance 
they still only have Justice Thomas.   Thus, they may still be a long way from 
that magic, non-neutral constituitonal number: five.

    The basic problem many conservatives face is that they want the Court to 
be originalist (in the sense of being faithful to the Framers' conceptions of 
the relevant text) and to be judicially restrained so it will not be entangled 
in partisan politics.  Alas, the is a poor fit between the interpretive means 
of narrow originalism and the goal of a less imperial judiciary-- a goal that 
has a lot of merit to it.

David E. Bernstein
Visiting Professor
University of Michigan School of Law
Professor
George Mason University School of Law
http://mason.gmu.edu/~dbernste
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