Joseph Sobran’s
Washington Watch

The Miers Debate

(Reprinted from the issue of October 20, 2005)

It’s understandable that conservatives are upset about President Bush’s nomination of Harriet Miers to the U.S. Supreme Court, but in a way it’s also regrettable. After George Will wrote a column sneering that she has no visible qualifications for such an exalted position, a reader wrote a retort to The Washington Post, quoting Chief Justice Joseph Story’s apposite observation that the U.S. Constitution was written so that any literate reader could understand it.

It wasn’t just for lawyers, let alone legal scholars. And in older times many justices of the Court weren’t even lawyers, though they were usually men of distinction (former presidents, for example).

Today, alas, a justice is expected to be conversant with case law and Court precedents. I say “alas” because these are so often misleading. The “commerce clause” has been used to justify virtually every power the Federal Government chooses to claim, making it what Justice Antonin Scalia has called, with apt wit, “the clause that ate the Constitution.”

Much the same could be said of the “equal protection” and “due process” clauses of the Fourteenth Amendment, which the Court has used to strike down countless state laws (including abortion laws).

Still, Miss Miers, a lawyer of distinction, might be a valuable addition to the Court if she could be independent-minded enough to adhere to the text of the Constitution and set aside the baneful idea that the Court’s previous rulings are binding precedents.

I wish we had any reason to suppose that she rejects the idea of the Constitution as a “living document” and recognizes that it grants only a few specific powers to the Federal Government, reserving all others to the states and the people.

But we can’t assume that and we have no grounds for supposing it. On the contrary. We have only Bush’s assurance of her “devotion” to the Constitution, and though he calls himself a “strict constructionist,” he obviously doesn’t get it himself. Throughout his presidency he has taken it for granted that the Federal Government has limitless power, and he has presumably acted under the guidance of his White House counsel — Miss Miers herself.

Bush’s recommendation of her, therefore, should be received as a damning disqualification. We can only presume that she agrees with him; David Frum recalls her telling him that Bush was “the most brilliant man she ever met.”

It transpires that she is a devout Christian and a fervent opponent of legal abortion; all very well, but this isn’t enough to make her a reliable interpreter of the Constitution.
 
Bush’s Legacy

Under fire from every angle, Bush is still doggedly defending the Iraq war. His poll numbers have collapsed; the war is especially unpopular. Republicans in Congress, as well as ordinary voters, are appalled at his reckless spending; Hurricane Katrina has given him an unexpected set of problems, to which his only solution is even more reckless spending; top Republican leaders — Tom DeLay in the House, Bill Frist in the Senate — are under indictment, and his advisor Karl Rove is facing a grand jury too; he’s even being blamed (preposterously) for high gasoline prices; and the Miers appointment has his own conservative base accusing him of betrayal.

When sorrows come, they come not single spies, but in battalions.

Still, Bush has staked his reputation, his “legacy” as they say, on being a “war president,” and a successful one. This is what he has invited history to judge him by, and he feels he can’t back down now. In a speech to the National Endowment for Democracy in early October, he insisted that his entire “war on terror” has been a success, claiming that ten terrorist attacks, three of them in this country, have been detected and prevented.

But he curiously changed his original case for the war. At first, three years ago, speaking to the American Enterprise Institute, he predicted with boundless optimism not only victory in Iraq, but one that would bring a sort of contagious spread of democracy to the Arab world, in a benign version of the domino theory; now his tone is darker.

He warns that the “terrorists” are “utterly committed,” determined to “overthrow all the moderate governments in the region and establish a radical Islamic empire that spans from Spain to Indonesia”; implying a more menacing domino theory.

Bush likens this enemy to the Communist threat during the Cold War. But his own words undercut his analogy. The Communists dreamed of world revolution, not mere regional empire. And how would a Spain-to-Indonesia Islamic empire threaten the United States?

In his speech Bush also compared radical Muslims to Hitler, Stalin, and Pol Pot, who had brought “war and genocide” to several countries; but this is a real stretch. Islamic radicalism has no genocidal goals; whatever it is, it just isn’t that sort of thing. He even used the word “Islamofascism,” one of the more inane neoconservative neologisms; one might as well warn of “Islamogenocide.”

Bush keeps misstating the nature of the enemy and exaggerating the stakes of the war, but all he achieves is to expose his own futility. He’ll be remembered for this war, all right, but probably in the way Bill Clinton is remembered for Monica Lewinsky and his last-minute pardons.
 
Big Winners?

By giving their unqualified backing to Bush, his war, and the neoconservatives, formerly “mainstream” conservatives have achieved only one thing: They have marginalized themselves.

For years, and maybe for a whole generation to come, they have made “conservatism” a synonym for pointless war, huge government, lunatic spending, and other evils once associated with the liberalism an older and more honorable conservatism — that of men like Robert Taft and Russell Kirk — was dedicated to opposing.

Right-wing blowhards are still congratulating themselves on coming to power. They’d better enjoy it while it lasts. Just as Michael Dukakis had to distance himself from the “L-word” in 1988, I suspect that prudent politicians will soon have to avoid being tagged with the C-word. Any coattails Bush once had will have been snipped off by next year’s elections.

National Review has just celebrated its 50th anniversary, and Bill Buckley will be honored at the White House next month when he turns 80.

These can only be sad occasions to those of us who are old enough to remember their better days.


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Joseph Sobran