October
4, 2005
Many Don't Grasp Strategy of Miers Nomination
By Thomas
Lifson
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.
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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.
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