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.