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Sunday, November 8, 2009
 
 
ARTICLES  &  COMMENTARY
Personnel Is Policy--Sadly, True
 
The president's unwillingness to explain and defend conservative legal principles has impelled him to nominate to the Supreme Court a woman without a record.
 

There's one way, anyway, that Harriet Miers really is like Antonin Scalia: When Ronald Reagan named the very conservative Scalia to the Supreme Court in 1986, the conservative judge won endorsements from unexpected quarters, including Mario Cuomo, the very liberal governor of New York. For Cuomo, what mattered most about Scalia were not his ideas, but his identity as an Italian American: one of Cuomo's own.

Ditto for Miers. Within hours of her formal nomination at 8 a.m. on Monday, October 3, Miers was endorsed by James Dobson, the influential broadcaster--and one of the few conservative leaders to have received advance word of the Miers choice. Dobson's endorsement was no formality. He placed at least one call that day to conservatives who criticized the choice, assuring them of his confidence in the former presidential counsel. Miers, you see, had attended a conservative evangelical church in Dallas. Raised a Roman Catholic, she had a conversion experience some 25 years ago. In other words: She was a born-again Christian, one of Dobson's own.

In the years since 1986, Cuomo has surely had many occasions to regret his burst of ethnic pride. Will Dobson come to feel the same way? Who can say? Miers has worked closely with George W. Bush since the early 1990s. As long as she was on his staff, she loyally followed his lead. There's no telling what she will do once she begins making decisions for herself.

Nevertheless, there are some important things that can be learned from her nomination--if not about Miers, then about the administration of the president who appointed her. The administration's tone is set by conservative evangelical Christians, from the president on down. For many of them, to call someone a "conservative Christian" is to identify something one is, rather than to describe something one believes.

One of Miers's closest friends, Texas Supreme Court justice Nathan Hecht, has had this to say about Miers's views: "Her personal views are consistent with that of evangelical Christians . . . You can tell a lot about her from her decade of service in a conservative church." Conservative Catholics have learned from bitter experience that some judges see no contradiction between their faith and liberal activism (e.g., William Brennan and Anthony Kennedy). Jews famously joke about themselves that if you have three Jews, you will have four opinions. Many evangelical Christians, though, still trust that if you worship as we do, then you must surely believe as we do--about everything.

George W. Bush has benefited immensely from this trust. However often he has deserted ideological conservatives on issues ranging from border control to government spending, he has been politically protected by the faith of millions of relatively unideological religious conservatives that he is "a good Christian man." So of course he is. But the president's Christian faith has not been inconsistent with his abandonment of the Federal Marriage Amendment the instant he was reelected, or a spending spree of historic proportions. Harriet Miers's Christian faith may likewise prove consistent with all kinds of unexpected rulings--and Christian conservatives may be about to learn painfully the lesson ideological conservatives were taught by Warren Burger and Harry Blackmun: When picking your judges, ignore their biographies and read their opinions--and if they have not yet written any opinions, put them on an appellate court first and make them write some.

As for the president, the Miers appointment is one more demonstration of his often reckless indifference to the quality of the personnel he appoints. "Personnel is policy" was a slogan of the Reagan years. Back then, it meant that if you want conservative policy, you had better go hire the smartest and toughest conservatives you can find to execute it. Today, that old Reagan mechanism has gone into reverse. Michael Brown of FEMA was unfortunately not at all an exception to the rule. He was not even an especially extreme manifestation of the rule.

Since the early 1980s, conservatives have worked to develop a team of superbly qualified and credentialed jurists, ready and waiting for that rare, precious moment when a conservative president and a Republican Senate would be called on to fill a Supreme Court vacancy. That moment arrived in the fall of 2005, twice. One vacancy, the Rehnquist vacancy, offered an opportunity to maintain the balance of the Court, and the president used that opportunity brilliantly, by appointing the outstanding John Roberts. The second, the O'Connor vacancy, offered an opportunity to change the balance. And confronted with that opportunity, the president spurned two decades' worth of hard work by the conservative movement. He disdained the personal sacrifice of a cohort of idealistic conservative lawyers who had turned their backs on the fortunes to be earned in private practice. He chose instead his own personal lawyer, a woman of no special distinction, and he chose her, as White House spokespeople explained on background, because he "felt comfortable" with her.

Think for a minute about that justification. The justices of the Supreme Court don't work for the president who appoints them. They long outlast him. He doesn't have to work with them, and how he personally feels about them should not matter very much. And then consider: What is it exactly about Miers that caused the president to feel so comfortable with her? What does it say about a president that he does not feel so comfortable with superb legal minds like Samuel Alito, Michael Luttig, or Michael McConnell?

Nor is this just a matter of intellect. It is a matter of character. Marvin Olasky expressed a rather nasty insinuation in his pro-Miers blog:

I've long subscribed to a theory (most recently voiced by David Frum) that if a new [Supreme Court] justice doesn't come in with a fervently articulated judicial philosophy, the social and media pressures to move left are likely to prove overwhelming. Our sub-blog Blog9 brilliantly explains why Harriet Miers--graduate of SMU (not Harvard or Yale), lawyer at a solid Dallas firm for most of her career--may be immune: "The pressures of the 'left' are strongest on those that want what the left can provide, i.e. acceptance at fancy law schools and New York dinner parties. It doesn't seem like Miers (unlike John Roberts or Anthony Kennedy or Frum or Bill Kristol) has ever aspired to any of that stuff . . . Why would she turn away from the people she has surrounded herself with all her life (conservative Christians from Dallas) in order to gain entry to an appreciative welcome at a Columbia Law School reception, where she'll probably never be progressive enough or cool enough anyway?"This is worse than silly. It's dangerously psychologically unrealistic. Ask yourself who is more likely to be immune to the smiles and frowns of the Harvard Law faculty: John Roberts, who spent three years at the place winning every prize it had to offer while rejecting its dominant philosophy? Or a nervous woman from Texas uncomfortably aware that even her own strongest supporters concede that she is "not cool enough"?

The one thing you know about the young men and women who have fought their way through elite legal institutions while being hissed and booed in class for expressing their principles is: They are not opportunists. It is certainly possible that the same might be true of a lawyer who spent her entire career in environments where conservatives rather than liberals governed her advancement and promotion. It is equally possible, though, that she might be a conservative only by adaptation--and that when her environment changes, so will she.

We cannot know. What we can know is this: Again and again this administration has sounded bold Reaganesque themes--tax cuts and Social Security reform at home, a war to the utmost against terrorism abroad. And again and again the administration has entrusted the job of executing these bold policies to people who don't understand them and often inwardly oppose them. The voice is the voice of Reagan, but all too often the hands are the hands of the first President Bush.

Nor can we always be altogether sure even about the voice. Modern political communication is a nonstop business. It's not enough to announce a policy with a flourish: It must be defended constantly, through thick and thin. This administration too often declines to defend itself in convincing terms--and the result has been a steady erosion of support for its foreign and domestic policies.

In August, the president emerged from his Crawford, Tex., retreat to restate the case for the Iraq war. He offered only shopworn phrases and the haziest generalities--and support for this right and necessary war just went on dropping. The president's failure to speak out swiftly and compassionately about the impact of Hurricane Katrina left him vulnerable to demands for a limitless spending commitment to the Gulf Coast--at a cost so huge that it raises real doubts whether his tax cut can endure it.

And now the president's unwillingness to explain and defend conservative legal principles has impelled him to nominate to the Supreme Court a woman without a record, in the hopes that Senate Democrats will allow her to slide onto the Court unquestioned and unchallenged. Perhaps they will.

But was this really a fight to run from? The odds were favorable. The prize was worthy. The moment was right. What else did we come to Washington for?

David Frum is a resident fellow at AEI.

 
 
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