Balkinization  

Tuesday, October 04, 2005

Why it's so hard to have a constitutional revolution-- Part I

JB

I sympathize with the movement conservatives who are bemoaning the Miers nomination, even though I don't share their politics. President Bush promised them a forthright movement conservative in the mold of Antonin Scalia and Clarence Thomas. What he delivered instead was first a rock solid establishment conservative in Chief Justice John Roberts, and now an old-fashioned Dallas, Texas business conservative in Harriet Miers.

In the days to come, we are likely to get a lot of allegations that Miers is unqualified for the job. Don't be fooled. Sure, she didn't go to a fancy law school (neither did the second Justice Harlan, by the way). But in her own way she's just as qualified as lots of other people who have sat on the Court. She may not be qualified in the way that legal academics like myself might like, and not in the way that movement conservatives would like, but she fits a familiar stereotype of Supreme Court Justice-- the business lawyer with powerful connections.

Following the Civil War, Republican Presidents placed a series of railroad lawyers on the Court with little or no judicial experience, but plenty of experience as counselors to business. That's what Miers is essentially, a Texas lawyer with lots of business connections who advised corporate clients, including, most importantly, George W. Bush. He liked the advice she gave him, and so she followed him during his career.

Presidents don't choose this kind of nominee because they want a revolution. They choose them because they will give the executive a free hand, and, perhaps most important, because the nominee will help ensure a pro-business climate.

George W. Bush has always been an interesting hybrid of the traditional business conservative who came from a powerful Republican family and a religious conservative who found God. That combination has made him appealing to many different parts of the Republican coalition. But when the chips are down in his Administration, Bush has shown his true colors as a business conservative who above all wants a smooth ride for capital. That is what Miers offers.

Business conservatives are less interested in shaking up the world than in stability and in clearing a path for the promotion of their interests. Although their goals may often overlap with the goals of movement conservatives and religious conservatives, they are relatively uninterested in religious proselytization or ideological crusading. Business conservatives are pragmatists at heart, and the promotion of capital makes them more cosmopolitan in spite of themselves.

Religious and social conservatives may be shocked to learn that the Republican Party is the party of big business after all-- it has been since the Civil War-- and that big business is not always interested in the same things they are. That is why the Republican revolution in the courts inevitably will be a revolution on business's terms.

And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things. What business wants is stability, comfort, predictability, and an agile, productive, submissive and demobilized population. It wants a powerful executive that can protect America's interests abroad. It wants a Congress freed from federal judicial oversight that is able to dish out the pork, jiggle the tax code and deregulate the economy according to its ever shifting concerns and interests. And it wants a Supreme Court that will give a pro-business President and a pro-business Congress a free hand, a Court that will protect the rights of employers over employees, advertisers over consumer groups, and corporations over environmentalists.

It wants, in short, someone very much like Harriet Miers.


Comments:

As a former 8 term state rep. from Georgia who had two attempts at law school, I give you the prize for best guess of what we might get.
 

Then the logic of the nomination becomes clear. Essentially, they split the difference three ways, to match the three constituencies of the Republican Party:

1) Big Business (Wall Street, smokestack industries, Big Agra, Big Pharma), who want all the things of which you wrote. They generally consider the religious conservatives to be ignorant and hostile.

2) Religious conservatives, who want victory and recognition in the culture wars and strict limitations on certain conduct like homosexual and abortion. They generally consider Big Business to be arrogant and sinful.

3) Suburban middle class and above, who want tax cuts and generalized law and order and security. They are jealous of status, and dislike being told what to do by Big Business or religious conservatives, including for abortion and homosexuality.

Harriet Miers cuts across all as a (1) business lawyer (2) who is an evangelical christian (3) but who does not have a clear enough position on the culture wars to upset educated suburban professionals.

This would ordinarily be a tight line to run, risking rebellion from any of the three, but the real X factors here are Iraq and Katrina. Since the only person he could find that would meet all three conditions and still could be trusted would have to be a close associate, Bush was stuck chosing someone who looks like a crony.

A docile press and careful stroking of key players would be more than enough to let a crony sail through, but in the current environment neither the media nor many (not all) of the key players trust Bush anymore, raising the stakes considerably.

I think the Democrats would be very wise to defeat Miers nomination -- because if they succeeded, Bush would be forced to find either another identical nominee (making him look addicted to cronies) or one who only met the interests of two or fewer members of the Republican triangle, causing significant problems down the line.

It's historically inevitable that the Republican coalition will fail like all previous political coalitions; the question is one of timing. Given the Bush's unparalleled ability to imperil the nation's economic and military security while creating dangerous political norms, I'd prefer sooner than later.
 

Excellent point. In many ways, this is what conservative supporters are arguing (see, for example, Beldar. She's qualified, they claim. But qualified for what, we ask? And this seems approximately accurate.
 

Sorry, but this post seems to me to seriously underestimate two things.

One is what a mediocre Court we had from the Civil War up to the New Deal.

The other is business's indifference to civil rights. I don't recall the chambers of commerce around America saying how terrible it was to criminalize homosexual sodomy. Nor were they trailblazers in the 1950s and 1960s; rather the opposite.

Bush is pro-business and essentially indifferent/suspicious towards civil rights; he's not a social-issues ideologue, but he shares their general outlook. Miers seems to be the next best thing to Bush's appointing himself. Wish I could feel more sanguine about that.
 

I am writing in reponse to the second point made in the previous comment.

I believe that Bush's position on civil rights issues is connected to his pro-business outlook. That is, Bush will support the social conservative agenda so long as it empowers Bush. Thus far, being opposed to "judicial activism" and gay rights has empowered him. So, naturally, he will stick to those position. But I don't think that sticking to those positions out of self interest makes him categorically against the opposite positions--indeed, he could very well be in favor of judicial activism and the aggressive protection of gay rights if those positions were to empower him.

What we've seen in the past 5 years is that Bush is a very good politician. This is not because he shares the views that the public holds, but rather because he is indifferent to them. As a businessperson, Bush's only attachment is to self interest, not to any particular ideological position.

Thus, saying that business is not interested in vigorously protecting gay rights misses the point. Business will support anything that supports it. So, if people want their leaders to be businesspeople, and if people want gay rights to be protected, the solution is clear: Align gay interests with those of business.
 

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