Here I am in Washington DC during a week that might perhaps be the most decisive of George W. Bush’s presidency. The President has nominated his friend and White House counsel Harriet Miers as justice for the Supreme Court. If Ms. Miers turns out to be what the president says she is she will tip the balance in the Supreme Court towards less judicial activism, thereby returning the legislative powers to where they belong: with the legislature instead of the judiciary. If she is not, however, Bush will have missed a historic opportunity. Some are already talking of the "Miers Misstep."
Pat Buchanan and Bill Kristol are both very critical of the decision to nominate Miers. One does not often find Buchanan and Kristol in unison these days, but regarding Miers they share feelings of disappointment. "I am disappointed, depressed and demoralized," Kristol said when he heard of Miers' nomination. Buchanan stressed that Miers does not qualify for the job and called on conservatives to fight Bush's decision.
I attended Grover Norquist’s Wednesday Group, where congressional aides and representatives of various conservative think tanks meet on a weekly basis to discuss ongoing and topical issues. This Wednesday the room was packed. I was there to present the Brussels Journal initiative to Conservative America, but of course the attendees had not come for me. Miers was the hot issue on the agenda. Though the Wednesday Meetings are off the record the news soon got out that the meeting had been historic for the bitterness that reigned amongst the participants. For an outsider like myself it was painful to watch. The Washington Post referred to the meeting as a "fiery encounter."
While some criticised Bush and others defended Miers, my general impression was that some people present felt not only disappointed, depressed and demoralized, but betrayed. To many the battle over the Supreme Court is more important than the war in Iraq. It is the war for the soul of America. Quite correctly they consider the battle over the judiciary to constitute the fundamental battle for preserving democracy in America. At the heart of the matter is the question who legislates: judges or legislators.
Nobody seems to know what Ms. Miers stands for. The conservatives are as much in the dark as the liberals. Harriet Miers has never publicly expressed her opinions on fundamental issues. She has not left a “paper trail.” We are told that this a plus, that one has to trust the President and the fact that lack of judgment is not one of his flaws. However, people are upset exactly by the fact that Harriet Miers is the woman without a paper trail. They point out that in order to make it to the Supreme Court it seems to have become important never to make one’s true opinions known. Never rock the boat, keep quiet, aim for a consensus by taking no position. (It strikes me as an almost European way of doing things.) The conservatives were looking for a battle, convinced that they could win it. During the 2004 electoral campaign they went from door to door to convince voters that these elections were crucial, because Bush would be in a position to appoint two, perhaps even three Supreme Court justices, and thereby tilt the balance at the Supreme Court to the side of the so-called "strict constructionists": judges who favor judicial restraint and do not see themselves as liberal political activists and social engineers.
On Thursday evening another socialite event of American conservatism took place: a gala dinner attended by more than 900 people in the National Building Museum to celebrate the 50th anniversary of National Review. At the dinner, too, the Miers nomination was hotly debated. Earlier in the week I had heard from two sources who had worked with Ms. Miers in the White House that they were surprised at Bush's choice because they did not consider her to have the intellectual qualities for the job of a Supreme Court justice. That had puzzled me, but after the dinner someone told me that the fact that Miers is not up to the task of writing dissenting opinions will actually guarantee that she will always side with Chief Justice Roberts. "This," my source said, "is something Bush is very sure about. He knows her well enough for that and it is the only thing he needs to know." Looking at it from that perspective the nomination of Miers is a masterstroke because the Democrats have no ammunition whatsoever to object to the choice of Miers. Why should Bush engage in a fight if he can get all he wants without a fight?"
Is Bush smart enough to think with such perfidious strategy, I wanted to know. "Well, you know, Bush does not have to be very smart. He is well surrounded by people like Karl Rove. These people have known for months that the Supreme Court issue was going to be on the political agenda. They are not the improvising kind. They have prepared for this thoroughly and long in advance. Bush wants to go down in history as the President who ended the age of judicial activism. He feels very strongly about tilting the balance at the Supreme Court decisively towards the strict constructionists. He is very certain about the way Harriet Miers will vote."
Nevertheless the President has taken a risk by antagonizing some of his supporters. They do not like being left in the dark. They certainly have a point when they stress that it is not a good thing for a democracy when it requires that people have blind faith in the President and no "paper trails" to help them make up their own minds. All they have got to go by is the presidential message: "Read my lips: Trust me." Some think this is simply not enough. Bush seems to have unleashed a political tropical storm of his own making and directed it towards his most loyal supporters. The Bush advisers think that Tropical Storm Harriet will never grow into a political Hurricane Harriet and wreck the conservative coalition. They will have to make sure, however, that the disappointment, demoralization and anger that I witnessed this week does not grow much deeper.