- The Washington Times - Friday, October 7, 2005

I’m initially disappointed in President Bush’s Harriet Miers Supreme Court nomination, but not quite ready to run out in front of the beer truck. Part of the problem with being a commentator is your are sometimes pressured to step out before all the facts are known. With that caveat in mind — and a few more to come — here goes.

I was counting on the president to nominate a well-known originalist scholar. Since he can pick whom he chooses, in addition to a strict constructionist why not one well known to be among the very cream of the judicial crop?

More than a handful of potential nominees fill that bill, including Michael Luttig, Michael McConnell, Janice Rogers Brown, Priscilla Owen, Edith Jones and others. Few court-watchers I know of considered Miss Miers to be in that elite group.

To be sure, the fact court-watching Bush supporters didn’t anticipate the Miers nomination is no reason to oppose her. The question is not whether we all know Miss Miers to be an ideal originalist appointment, but whether, in fact, she is.

Since President Bush knows her so well and professes to believe so strongly in originalism, shouldn’t we trust he wouldn’t have appointed her unless she were a highly qualified originalist? But here’s the rub. Many conservatives are uncomfortable accepting this appointment on blind faith.

Some may counter this is hardly blind faith: The president has consistently appointed strong conservatives to the bench. For the most part I would agree, but the Miers appointment, on its face, at least appears compromised, and that’s troubling. (While John Roberts was a stealth appointment concerning his originalism, there was no stealth about his legal credentials.)

On the surface, Miss Miers is a very close friend of the president’s. Friendship should certainly not disqualify a person, but the president has a duty to appoint the most qualified people to the highest court. While personal loyalty is admirable, the Constitution should never be subordinated to it.

I also hope the president isn’t merely trying to avoid controversy. Is he so beleaguered he has chosen to follow the path of least resistance — to appease the left? If so, I strongly believe he is grossly misreading history and, more importantly, his conservative base.

The president’s popularity has waned mostly because he has disappointed his base. He should never worry about avoiding the left’s hand grenades, whose pins are always pulled.

Of all things I thought he had learned in spades, it was that his father’s overtures to the left not only were unappreciated and rebuffed — they also deeply wounded his presidency and opened the door to eight years of Bill Clinton.

That brings me to the clincher. Part of me says, “Calm down, the issue — as I said above — isn’t whether we conservatives know Miers is going to be a stellar, originalist jurist, but whether, in fact, she will be. It’s the integrity of the Constitution that’s paramount, not whether conservatives are mollified. So if Mr. Bush knows she is going to be excellent, that’s all that matters in the end.”

On the other hand, I believe he had the power to both appoint someone he knew to be a highly qualified originalist, and someone his conservative base knew to be as well — but he didn’t do it — again.

While the Constitution and the court are monumentally important, they aren’t the only institutions in play here. The future of the presidency and conservatism itself are in the crosshairs too. We are well into President Bush’s second term, and sometimes he seems to let the liberal tail wag the dog.

By acting apologetic about conservatism in this and other recent actions, e.g., post-Katrina, he is sending the wrong signal at the wrong time. If the Republican Party’s standard-bearer acts tentative about conservative solutions and fighting for them, how can we expect the base to be fired up, especially as we go into 2008 without a natural successor to replace him — given that Vice President Dick Cheney won’t be running?

I truly wish Mr. Bush had seized this opportune moment to re-energize his base and his presidency by appointing a person on his list whose Scalian credentials are common knowledge.

But I would also be remiss if I didn’t close with a confession. As I’m submitting this column, I’m hearing very good things about Miss Miers from people who know her and whom I trust: to wit, she’s a strong, pro-life evangelical Christian, a conservative’s conservative, an originalist and a very capable lawyer. If so, I will enthusiastically support her — and the left will go to war against her. We should welcome that fight.

David Limbaugh is a nationally syndicated columnist.

LOAD COMMENTS ()

 

Click to Read More

Click to Hide