The Dartmouth Observer
Monday, October 17, 2005
Miers Unforeseen, but Unsurprising: The Invisible Hand
There has been a lot of confusion over exactly why President Bush nominated Harreit Miers, especially among the blogging intelligentsia. Rather than jumping directly into the fray and putting my opinion on whether Miers was qualified or not, I spent two weeks collecting data and now believe that I have made sense of the nomination. There are four reasons that contribute to the current President nominating someone as underwhelming to elites as Harriet Miers: (1) Bush is a pro-business president above all else, (2) The Senate Republicans placed him in a strange tactical situation, (3) The White House views qualifications differently from the blogosphere and doesn’t really buy into the meritocracy myth, and (4) the Republicans have to support Bush on the final count due to the touch of Karl Rove and the Bush money-machine. I am going to try and develop these ideas which are going to put me directly at odds with many people much more accomplished than myself. Since it is a long argument, I will break the post up into pieces and release them as I write them.
(1) That Bush is a pro-business president is not a controversial point.
As John Micklethwait and Adrian Wooldridge remind us in The Right Nation: Conservative Power in America, George Bush, having gone to Yale as an undergraduate, possesses an MBA from Harvard Business School, and is the first American president with an MBA to hold high office. His administration also holds more CEO appointments than any heretofore. Eisenhower, who is often lauded as being a little too friendly to big business only had two former CEOs in his Cabinet. Bush started with seven: Dick Cheney of Haliburton, Donald Rumsfield of G.D Searle and General Instruments, Don Evans of Denver-based Tom Brown, Andrew Card of General Motors, Ann Veneman (agricultural secretary) of Calgene, Condoleezza Rice (a political scientist) of Chevron Corporation, and Paul O’neill of Alcoa. Colin Powell has an MBA, Miers was a coporate lawyer, and Alberto Gonzales worked for Vinson and Elkins, who represented Enron prior to its collapse.
Bush has consistently subsidized the coffers of large corporations and has done his best to remove those pesky environmental protections that prevent more wealth concentration and calcification into the hands of corporate entities and CEOs. The Kyoto protocol was pronounced dead in the same brusque manner that the dark, lurking Rumsfield notified Europe of its historic divisions between “old” and “new” Europe. (That must have been the most politic way to say: France, Germany, fuck off.) Business interests have trumpeted free-market rhetoric at times. Recall Bush’s almost trade war with Europe over steel, until the World Trade Organization settled the debate.
(2) Filling O’Connor’s seat was crucial to Bush as well, but not for the reasons movement conservatives think.
David Strauss, weighing on whether justice generally change their ideological orientation over time, offers:
Why, then, do people think that justices routinely change their views? SometimesStrauss has got it quite right: that the ideology of a justice depends on the issue that you catch them on.
Movement conservatives and the blogging intelligentsia have focused the debate on whether or not Miers will be more or less consistently conservative than O’Connor. However, O’Connor’s jurisprudence has only been a swing seat in regards to the most popular social and cultural issues of the day. Cass Sustein typologizes O’Connor’s jurisprudence in his latest book Radicals in Robes as the judicial minimalism that he so loves. While I haven’t yet bought the book (it’s on my January purchase list), Sustein’s clear writing style allowed me to finish most of the book in an hour at the University of Chicago’s Barnes and Noble’s bookstore. Continuing the line of thought from his landmark book (at least for my thinking on Constitutional issues) One Case at a Time, he argues that judicial minimalism, as opposed to perfectionist liberalism or legal fundamentalism (read: movement conservatives restoring the ‘Constitution-in-exile’) pushes law through nudges rather than earthquakes. O’Connor was such a judge; her concurrences and opinions have often (much to my chagrin sometimes) tried to decide cases as narrowly as possible whereas the concurrences of Scalia, Thomas, and Marshall have often wanted to rewrite, rethink, and revamp entire sections of constitutional jurisprudence.
Movement conservatives are tenacious and audacious legal fundamentalists who want to impose their counterreformation against the New Deal, Warren, and Burger courts through the force of their intellects, opinions, and dissents. Indeed, by conflating “legal competence” with “legal fundamentalism” and “jurisprudential perfectionism”, the legal elite have created the norm that a judge, to be considered qualified for the Supreme Court, needs to have a long history of constitutional interpretation on one side or the other. Jacob Levy makes this very point in his post about Miers:
People who hold it actually believe-- rightly-- that this appointment is wrong,Levy’s “hard intellectual work” and “conventional qualifications” stem simply from that fact that the academic and ideological elite on both sides believe that any Supreme Court seat in general, and O’Connor’s seat, in particular ought to be about rigorous constitution jurisprudence and defendable constitutional political theory.
I hate to disappoint my future colleages but the Supreme Court, being coequal with the other branches of government, engages in politics! That means determining who gets what, when, where, and how. David Strauss reminds us what’s really at stake when he maintained:
when the Supreme Court in the mid-1930s struck down some of the social-welfare
In addition, lest you think that Roosevelt is an extreme example due to his court packing scheme, Strauss continues:
President Richard Nixon made campaign promises to appoint justices who wouldDesegregation, criminal right’s, deference to social-welfare laws, are not merely matters of constitutional divination and legal gnosticism, but matters of division, redistribution, and allocation in a world of finite resources. In short, questions of politics and not of theory.
(3) O’Connor’s seat is a seat for pro-business pragmatic judges now.
O’Connor was a consistently pro-business judge and, as such, needed to be replaced by another pro-business judge. Bradford Plumer hits the nail on the head: "she'll be a perfect replacement for O'Connor, who was a very similar type of business-friendly, don't-rock-the-boat type of judge. Movement conservatives like Antonin Scalia or Janice Rogers Brown are too unpredictable. Miers, on the other hand, worked for a Dallas firm that specialized in the basics. She's perfect.” Jack Balkin even takes the time to clarify what business conservatives want out of politics:
Business conservatives are less interested in shaking up the world than in
All this goes to say that if my estimation of Miers is correct, then Cass Sustein should come out in full support of her. If you think that I have concocted this whole problem of big business's interest in the courts, or, bordered on conspiracy theory, I will address these problems by quoting at length from a piece in the Houston Chronicle:
"Her business background won't solve all our problems and concerns, but now,
The article continues by giving us a glimpse into the nominees legal philosophy:
Even though we disagree on businesses having rights “just like everyone else” (I’ll rethink what rights corporations and I share when I am valued at more than several hundred million dollars regularly), Miers will probably be good for the Supreme Court in so far as her minimalism will check the movement conservatives and legal fundamentalists from creating fundamental shifts in the law.