Alexander's Column

An epic battle — PLEASE...

Mark Alexander · Oct. 28, 2005

“[T]he danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day.” –Justice Joseph Story

In his first presidential debate with Albert Gore, 3 October 2000, then-Gov. George W. Bush was asked, “Should a voter assume that all judicial appointments you make to the Supreme Court or any other federal court will be pro-life?”

He responded: “The voters should assume I have no litmus test on that issue or any other issue. Voters will know I’ll put competent judges on the bench; people who will strictly interpret the Constitution and not use the bench for writing social policy. … I believe that the judges ought not to take the place of the legislative branch of government; that they’re appointed for life and that they ought to look at the Constitution as sacred. They shouldn’t misuse their bench. I don’t believe in liberal-activist judges. I believe in strict constructionists. Those are the kinds of judges I will appoint.”

Conservatives knew that Gov. Bush had appointed four constructionist (read: “conservative”) judges to the Texas Supreme Court. We knew, too, that the next president would likely appoint between one and three judges to the U.S. Supreme Court. Indeed, in a pre-9/11 world, there was no more important issue, for conservatives or liberals, than who would be making those appointments. The future of our constitutional republic depended on this election; it depended on whether generations of laws would be made by judicial activists, or whether our Constitution would be restored as the supreme law of the land.

It is fair to say, then, that Gov. Bush was elected president in large part due to his commitment to appoint strict-constructionist judges – those who possessed a demonstrable record of rendering legal interpretations on the plain letter of the Constitution, as opposed to interpreting the law according to their personal or constituent agendas. The former is the absolute intent of our Founders; the latter is the last refuge of politicians and special interest groups who can’t pass their legislation through legitimate means.

President Bush advanced numerous conservative judges to the District and Circuit Courts, only to have those who were most clearly originalists held hostage from a floor vote by Ted Kennedy and his filibustering minions on the Senate Judiciary Committee. Not a single Supreme Court vacancy occurred during President Bush’s first term, which raised the stakes still further for the 2004 election.

While debating John Kerry in his bid for re-election, President Bush was asked, “If there were a vacancy in the Supreme Court … who would you [nominate] and why?” Mr. Bush restated his commitment to nominate constitutional constructionists: “I would pick somebody who would not allow their personal opinion to get in the way of the law. I would pick somebody who would strictly interpret the Constitution of the United States. … I wouldn’t pick a judge who said that the Pledge of Allegiance couldn’t be said in a school because it had the words ‘under God’ in it. … That’s not what the Constitution says. We’ve got plenty of lawmakers in Washington, DC. Legislators make law; judges interpret the Constitution. … No litmus test except for how they interpret the Constitution.”

That litmus test should, rightly, be the only test of a nominee.

President Bush was re-elected, and within months the Republican Senate cut a deal with Democrats to release some of Mr. Bush’s conservative Circuit Court nominees for a full Senate vote. Among those approved by the Senate were Janice Rogers Brown and Priscilla Owen. However, Democrats left the door open for future filibusters.

When Justice Sandra Day O'Connor announced her retirement, The Patriot correctly estimated that the President would choose a replacement from nobody’s shortlist. Indeed, he nominated 50-year-old John Roberts, who had a reliable conservative history on the bench. Judge Roberts was approaching Senate confirmation when Chief Justice William Rehnquist, one of the Court’s conservative stalwarts, died. Judge Roberts was then confirmed Chief Justice, as Mr. Bush prepared to announce his second High Court nominee in as many months.

With Chief Justice Roberts in place, the President’s nominee for the seat of Justice O'Connor would be the swing vote necessary to begin restoring the court to its constitutional limits. For decades, Reagan conservatives – those who embody the revitalized heart and soul of constitutional conservatism – have been girding up for a pivotal battle. This was the battle we elected George Bush to lead five years ago. It was a battle to determine whether our nation would be a Republic or an oligarchy. Conservatives have had no illusions about how difficult or important this battle would be.

However, to the utter dismay of his conservative base, shock and awe really, President Bush nominated his personal lawyer, White House Counsel Harriet Miers – a “stealth” candidate without a judicial track record. It was “The epic battle that wasn’t.

The Patriot’s legal analysts immediately conjectured that the only logical explanation was that the Miers nomination might be part of a macro-strategy to rally Mr. Bush’s conservative base around a negative, then, when opposition reached a fever pitch, Miers would withdraw her name and the President would nominate a compelling and credentialed conservative such as Brown, Owen, Edith Jones or Michael Luttig. The base would then be reinvigorated, singly-focused on that nominee’s success.

Unfortunately, the most likely explanation is that President Bush made a colossal error because his administration closed ranks around him so tight right after Katrina, that reality-check lines were cut between the White House and the President’s most loyal supporters outside the Beltway.

As noted in this column three weeks ago, Miers might have proved to be the most conservative member of the court, as Mr. Bush hinted. What the President’s advisors didn’t understand is that his "trust me” currency with conservatives has been severely devalued by his now-numerous failures to carry the day on domestic issues, particularly budgetary discipline and government growth.

True to form, President Bush stood firm in his nomination of Miers; this was consistent with his penchant for loyalty, toughness and resolve in the face of criticism – but what about his loyalty to the conservative base that elected him – twice? It certainly seems that, for the moment at least, this President has forgotten who his staunchest supporters are. Thus, until he takes bold steps to restore their confidence, President Bush will likely be met by a conservative movement that applies to him Ronald Reagan’s famous caveat: “Trust, but verify.”

Now, with Miers’ withdrawal of her nomination on Thursday, President Bush has an opportunity both to restore the integrity of the Supreme Court by appointing a constitutional constructionist with a demonstrable record as such, and to restore the integrity of his relationship with his conservative base.

“I share your commitment to appointing judges with a conservative judicial philosophy…who will interpret the law, not make it,” said Miers, in her withdrawal letter. President Bush said he would keep Ms. Miers on as White House Counsel and announce another nominee “in a timely manner.”

The Miers’ withdrawal has, predictably, thrown the Left for a loop. Senate Minority Leader Harry Reid offered some unsolicited advice on behalf of his ilk to the man he recently called “a loser” in front of a high school civics class: “President Bush should reject the demands of these extremists and choose a justice who will protect the constitutional rights of all Americans.”

Mr. President, we “extremists” remain prepared for the long-overdue battle to restore Constitutional limits on the Supreme Court. PLEASE – lead the charge.