The blogosphere is ablaze with the nasty conservative reaction to President Bush’s nomination of his own White House counsel, Harriet Miers, to fill Justice Sandra Day O’Connor’s seat on the Supreme Court. Conservative commentators are appalled, depressed, and bitterly disappointed, and those were some of the more polite comments. Harriet Miers is not the openly committed conservative ideologue of their dreams. Pat Buchanan summed up the objections to Miers: “Bush capitulated to the diversity-mongers, used a critical Supreme Court seat to reward a crony, and revealed that he lacks the desire to engage the Senate in fierce combat to carry out his now-suspect commitment to remake the court in the image of Scalia and Thomas.” This was the conservative sentiment before it came out that Miers apparently long ago claimed to support gay rights.
Poor Miers. A conservative crack-up over a Supreme Court appointment was inevitable. Miers just happened to be the one on the spot when it came. Conservatives have urged a combination of qualifications for judicial appointments which could not all be satisfied—even the new chief justice, John Roberts, had trouble among the hard-core right for his past work on a gay-right case.
A major theme for conservatives has been to stop “judicial activism,” which they see as judges imposing their own values to overrule decisions by legislatures. This goes back to conservative anger over the many constitutional innovations of the hated Warren Court, ranging from protections for criminal defendants to restrictions on school prayer. Just days before the 1968 presidential election Richard Nixon promised that his “nominees to the high Court . . . would be strict constructionists who saw their duty as interpreting and not making law. They would see themselves as caretakers of the Constitution and servants of the people, not super-legislators with a free hand to impose their social forces and political viewpoints on the American people.”
The bitter pill for conservatives is that the resulting Burger Court was far more activist in striking legislation than the Warren Court had been, invalidating a third more federal and state statutes in about the same period of time. And to the eternal outrage of religious conservatives, three of Nixon’s appointees voted with the majority in Roe v. Wade to invalidate legislation prohibiting abortion.
Another set of themes for conservatives in judicial appointments has been pro-states rights, family values (read that: anti-gay rights), and opposition to abortion. These issues were set forth in the Republican Platform of the 1980 presidential election that launched the Reagan era. Appointees would be “women and men . . whose judicial philosophy is . . . consistent with the belief in the decentralization of the federal government and efforts to return decision-making power to state and local elected officials . . . [and] who respect traditional family values and the sanctity of human life.”
Economic conservatives favored states rights because that would limit the scope of economic regulation. Religious conservatives liked family values and the anti-abortion promise. Once again they were disappointed. The Rehnquist Court, dominated by appointees of Reagan and Bush, invalidated twice the number of federal statutes as the Warren Court and about as many state statutes. Roe was confirmed. And the Court invalidated state statutes that criminalized homosexual sodomy (a decision which detractors blamed as paving the way for gay marriage) and banned the death penalty against juveniles and the mentally retarded, and more.
The potential conflict between these conservative positions is easy to observe. One cannot urge judges to abstain from government by judiciary while simultaneously asserting that the judges must advance a particular set of substantive positions, because vindicating the latter may require quashing contrary legislation. The protection of states rights, for example, comes by invalidating federal legislation.
A recent poll of the public by the American Bar Association found that 56 percent of respondents believe that there is a judicial activism “crisis,” in which judges “routinely overrule the will of the people.” Conservatives claim this as their position. According to a recent study, however, conservative darlings Clarence Thomas and Antonin Scalia have voted to strike congressional laws 65 percent and 56 percent of the time, respectively, more than double the rate of Justice Stephen Breyer (26 percent), and well above liberal Justices Ruth Bader Ginsburg (39 percent) and John Paul Stevens (39 percent).
There is another kind of conservatism, which might be called legal conservatism. This counsels adherence to precedent, self-restraint, judicial modesty, with an emphasis on preserving the autonomy and integrity of the court from the taint of politics. Chief Justice Roberts espoused this kind of conservatism. From the conservative point of view, the problem with this kind of conservatism is that it promises to lock into place longstanding decisions like Roe and the Warren Court’s liberal constitutional reforms. This is why the anti-abortion group Operation Rescue was unhappy with Roberts, and has already come out against Miers.
Given this constellation of conflicting conservative positions, any nominee would have raised ire from one conservative wing or another. The misfortune of Miers is that her views are so unknown that every conservative group feared the worst, and let loose their barrage of angst and frustration. After repeated failures, this was their best chance in decades to turn the orientation of the Court toward the right, and now it may be lost.
Brian Z. Tamanaha is the author of On the Rule of Law: History, Politics, Theory (Cambridge Univ. Press 2004).