A Test of Consistency

The nomination of White House Counsel Harriet Miers for the U.S. Supreme Court gives us a chance to see whether the conservatives in the Senate have the courage of their convictions. For decades they have attacked the Left for what is an undeniable inconsistency, which is their situational morals and ethics. The Left has earned their reputation for standing on principle when, and only when, it suited their purposes. Free speech is the easiest, and most egregious example. Only speech that fits their crooked worldview is acceptable. They are the first to scream about a supposed abridgement of their speech, and the first to condemn when speech makes them uneasy. Just ask Bill Bennett. Conservatives have been the ones attempting to restrain them, calling for a logical consistency on this and other issues.

Only last month conservatives were calling upon the Left to confirm the nomination of John Roberts on the basis of these constitutional principles. They were saying that, absent a dearth of competence, Senators had no choice but to vote Aye. Presidents had a privelege here that must be respected. They liked Roberts. Now comes Harriet Miers.

George Will says it best, but many on the Right are calling for her repudiation. I expect that this siren call will only increase. After all, most of what George says about her is apparently true. Will is a great writer and a logical thinker.

[T]here is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech. The day before the 2000 Iowa caucuses he was asked -- to ensure a considered response from him, he had been told in advance that he would be asked -- whether McCain-Feingold's core purposes are unconstitutional. He unhesitatingly said, "I agree." Asked if he thought presidents have a duty, pursuant to their oath to defend the Constitution, to make an independent judgment about the constitutionality of bills and to veto those he thinks unconstitutional, he briskly said, "I do."

But, this same George Will used the opposite reasoning when he supported the nomination of John Roberts to the court.

At the risk of revealing a serious empathy deficit, one might ask: What is the importance of a Supreme Court justice's understanding the problems of lettuce farmers in California's Central Valley? How, in the course of performing his judicial duties, does a justice reach out to, and stay in touch with, those farmers? Perhaps Justices Ruth Bader Ginsburg and Stephen Breyer, two of Feinstein's pin-ups, routinely do the empathetic things that Roberts, Feinstein has decided, does not know how to do, or is too emotionally impoverished to do. But how does any of what Feinstein was talking about pertain to judging?

It is time for a little consistency here. I agree with most of George's argument. Miers seems to be exactly the lightweight that he says she is. She supported Al Gore and the international Criminal Court. As recently as a decade ago she was a certifiable bleeding-heart liberal. Yet....

The President of The United States has the privelege to appoint anyone he wants. So long as his pick is competent with an unsullied reputation, there is no basis, either in the constitution or in precedent, for rejecting her. Conservatives knew when they supported his initial run for the presidency that Bush was a compassionate conservative. That he, like his father before him, was not a real conservative. Now that he will never again have to face the voters, he can be expected to revert to type. But the whole idea of conservativism is a fealty to a set of rules. Rules that, to a conservative, do not change with the whims of people, but rules that serve a larger purpose, that were here when we arrived, and will be here long after we are gone. The term conservative itself could be exchanged with consistent without changing its meaning, as a descriptor of its eponymous political movement. In fact, calling us Consistents is more accurate than calling us Conservatives. At least it used to be. But it would not be, if we fail to support Ms. Miers. Senators should, as they did with Ruth Bader Ginsburg, grit their teeth and vote Aye. Consistency demands it. Fealty demands it. And, if they need just a little bit more, they can console themselves that her background, and the conservative argument against her, is almost exactly the same as that pertaining to Rehnquist himself. Senators, vote to confirm Miers. Be consistent.