Why are Bush's Nominees so Moderate?

Michael E. Levine

President Bush has now surprised both his friends and his enemies by nominating Supreme Court justices who are conservative but apparently not "out of the mainstream", at least as the mainstream is understood by those to the right of Nancy Pelosi and Barbara Boxer. Is the President a closet "moderate"? Has he turned his back on his base?

No. He is simply maximizing his preferred choices within two constraints, one self-imposed and one imposed on him. The self-imposed constrained is easily articulated: as much of 43's presidential choices seem to have been made to avoid repeating his perception of 41's mistakes, he is unwilling to nominate someone who will be "another Souter". As I interpret this, for 43 the sin of the Souter nomination was less that he ultimately didn't turn out to be as conservative as Sunuunu had told 41 he would be, but rather that 41 took Sunuunu's word for it and nominated someone he didn't know, saying things about him that ultimately made it look to his supporters and to history that he didn't know what he was doing.

This President Bush is not going to nominate anyone to the court who will surprise him or history. In Roberts' case, he chose someone he knew a little but whom many people knew a lot and who had such a distinguished profile and career that the only possible grounds he might have been rejected on were ideological. (I'll get to that in a moment.) In the case of Miers, he has chosen someone he knows extremely well personally, probably as well as any president has known a nominee since Fortas. While it may not be possible to predict how either will rule in every case, there will be no dramatic surprises with either of them.

The imposed constraint is more interesting in some ways: No matter who screams and yells from either the conservative or liberal side of the Senate, the President cannot afford a donnybrook at this moment in his political life (Katrina, Iraq, budget, congressional leadership ethics, "outing" CIA agents, etc.). He can avoid one by de facto presenting his nominations not to the Judiciary Committee or to the Senate as a whole, but to a committee of 14 Senators who contain within them the deciding votes on whether the Democrats can conduct a filibuster and whether the Republicans can change the Senate rules to outlaw filibusters on judicial nominations (the so-called "nuclear" option). In modern political economy terms, the group contains within it the "median voter" on both issues (to defeat a filibuster requires 60 votes, so the "median voter" in that case is not the 51st vote but the 60th.) No candidate unsatisfactory to this group can be confirmed and no candidate acceptable to this group can be defeated.

Who is the Gang of Fourteen? In a very polarized Senate, it is a group of seven Senators from the left (such as it is) of the Republican Senate delegation and seven from the right (such as it is) of the Democratic delegation who care enough about the Senate and the country not to want to see the Senate's traditional function as the more deliberative and less partisan body gutted and who recognize that when a President wins an election (pace Bush v. Gore and all that), he or she is entitled to nominate Justices who broadly represent the point of view that won.

The Gang of 14 made an agreement whereby the seven Democrats would no longer vote along with their party on filibustering judicial nominees except in "extraordinary circumstances", and in turn the seven Republicans would break with the Republican leadership on voting for the "nuclear option." Just what an "extraordinary circumstance" is was left undefined, but at a minimum what it means is that the President cannot insist on a nominee so conservative that he or she will get support only from the Republican "base", requiring party discipline to hold the Republican vote for her, nor can the Democrats refight the 2004 election by insisting that nominees be broadly acceptable to them.

In President Bush's current circumstances, pressed from the right and wishing to avoid a divisive fight that will highlight the disarray his administration is teetering toward, this means staying well within the boundaries defined by the Gang. There are two ways to do this: one, nominate a minimalist conservative (one who avoids legislating from the bench and would have a preference for staying within precedent where possible, in contrast to one who wants to rewrite law to enshrine an earlier, or perhaps unprecedented, view of the Constitution) who so stellar that the only possible objection to him is extreme ideology of the left or right. Enter Mr. Chief Justice Roberts. Two, nominate someone whose views are known well only to the President, allowing him to defend her to the right by saying he really knows her and they should trust him and to defend her to the left by making sure that she has left no imprint that would suggest that she is an ideologue. Enter Mme. Miers.

What are President George W. Bush's "real" views on what kind of nominee or Court he wants? We'll never know. But we know what kind he can have.