05 Oct 2005 Defeatism in Defense of the Constitution is No Virtue

Not for the first time, my friend Mark Tapscott is bringing a fresh approach to a discussion, in this case, the Harriet Miers confirmation debate.

Mark says Miers isn’t the issue, the “weak-kneed Senate GOP leadership is”:

…while I sympathize mainly with those who believe Bush has missed an historic opportunity by not nominating a Brown, McConnell or Luttig, it appears to me most everybody is missing the fundamental point.

That point is this: As long as the Senate GOP leadership refuses to confront head-on the Democrats’ abuse of the filibuster and end it, the Democrats have a veto if they choose to use it. And choose it they will for any nominee short of one with an undeniably perfect record – John Roberts – or one with no record at all, Harriet Miers…

…Put simply, with Frist and the Senate GOP leadership, we get a Roberts or a Miers. There is no in-between.

Two Robertses would have been better, but another fundamental point is missing:

Why don’t we let the Senate liberals vote down our best candidate? It’s not like we don’t have more.

I ask you: Who wins if the Senate Democrats filibuster one well-qualified originalist nominee after another?

The answer: America, the American people, the court and conservatism.

Such a strategy would result in: 1) the educational value of a national debate about why the filibusters were occurring (philosophical differences), and 2) the eventual confirmation of a well-qualified originalist, because there are more qualified candidates than the left can possibly filibuster.

Just ask the Federalist Society.

Yes, by the cautious standards of Washington politics, my prescription is a high-risk strategy, but is it a higher risk than to one to the nation of nominating and confirming an unknown? Not on your life (or, rather, not on the lives of one million little babies annually who need us to be right on this so that they might be born).

And, yes, I know we would be going into battle with the Republican Senators we have, rather than the Republican Senators we wish to have. But after the third or fourth successful filibuster, if it actually came to that, the words “Republican primary” would start to resonate pretty strongly amongRepublican Senators.

Even if Ms. Miers is 100 percent solid philosophically and intellectually, as President Bush says and very likely truly believes she is, he can’t know — because she can’t know — how well she would be able resist the media vilification and public pressure that gets put on any prominent public figure. However, there are solid, intellectual originalist candidates who have been in the arena (in Teddy Roosevelt’s immortal phrase), and, as such, have been tested.

To repeat, tested. Not, “I’ve worked with her for ten years so trust me on this, why don’tja?”

I think it was and remains a great and possibly permanent loss to the nation that Robert Bork never joined the Supreme Court. But that loss was magnified by the fact that the justice we got instead was Anthony “Swing Vote” Kennedy — a man, I remind everyone, who was said at the time of his nomination to be a sure vote for overturning Roe v. Wade because, by all reports, he is and was deeply religious and a member of a pro-life church.

(Gee, I think I’ve heard that phrase somewhere else recently.)

At the risk of being derided by “GOP-Uber-Alles” crowd, including bloggers who post that there is a direct correlation between length of service in the conservative movement and defeatism (the reverse actually is true — good grief, folks, look around once in a while), let me share that I was on Capitol Hill (and working hard on these issues) when Judge Bork was defeated. I was outside the Senate waving a “We Love You Clarence” sign (and doing other things) when Clarence Thomas was drafted into what became the precedent that conservative Supreme Court nominees must be pure as the driven snow (my illusion to the color white is intentional; the Senate treated the conservative Clarence Thomas more harshly because of his race) while liberal Presidents can debauch interns in the White House and lie about it under oath. I was working on Supreme Court nominations when George W. Bush was still drinking and getting rich off baseball. And — as I am not the issue — literally millions of movement conservatives, in one way or another, were there, too, writing letters to Senators, donating to conservative candidates and groups, educating their fellow citizens, running for office, and more. Some of them were even studying and practicing constitutional law so that, at some future date, when a God-fearing, Constitution-respecting President needed good candidates for appellate courts, there would be good candidates to choose from. So I, and I know others, don’t particularly care for the notion that we in the conservative movement have to sit still and take whatever George W. Bush throws at us, or that he and we together (I do believe Bush is with us in his heart) have to settle for unknown nominees for no greater reason than fear the left may win a round or two in the Senate.

I say to the GOP-Uber-Alles crowd: It is not those of us who think we can do better than a stealth candidate who are the defeatists.

It is those of you who are afraid to fight for the Constitution.

In his clarion call of conservatism, Barry Goldwater declared that moderation in the pursuit of justice is no virtue. Could defeatism in defense of the Constitution be any different?

Addendum 1 (10/5/05): One of the White House talking points on Ms. Miers is that because Miers has served at the President’s side for 10 years, she fully understands and is dedicated to his focus, perspective and goals. That argument reminds me of this quote…

For seven and a half years I have helped the President conduct the most difficult job on earth.

…from this speech.

We all know how that turned out.

Addendum 2 (10/5/05): Gail Russell Chaddock of the Christian Science Monitor has an on-the-nose piece in the October 6 edition on conservative reaction to the Miers nomination. Chaddock captures the sentiment very well.

Noteworthy quote from Paul Weyrich: “I can tell you that … the grass roots are just heartbroken by this nomination.”

Ms. Chaddock says that, prior to the Miers nomination, the White House gave “key conservatives… a list of three names, including [Miers’], and asked for comment. For the most part, there wasn’t any.”

I think the White House needs to expand its list of key conservatives, and pronto.