Why are so many members of the conservative intelligentsia so
upset with ...
DavidEBernstein at aol.com
DavidEBernstein at aol.com
Thu Oct 13 15:40:55 PDT 2005
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
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
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
University of Michigan School of Law
George Mason University School of Law
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