"Do Americans Even Want a Conservative?"

The President is going to great lengths to assure his base that Miers will be a conservative justice. Within the right, the twenty-thousand dollar question is just that: is she conservative, and if so, is she conservative enough? As the infighting on the right reaches a cacophonous din, a more important question is being lost: what does being a conservative justice mean and does America really want a conservative justice?

In the wake of the 2004 election, commentators from all sides tried to assess which issues decided the election. Initial polling suggested something called “moral values,” but that poll was quickly discredited as unreliable. The conventional wisdom now believes that issues of national security were decisive; the country trusted President Bush more than Senator Kerry to protect them from terrorism. Whichever you believe, no one suggests that the 2004 election was a referendum on judicial philosophy.

Many have pointed to the fact that President Bush won the election and therefore gets to nominate conservative justices. That does not mean the Senate has to confirm them. If the election were all that mattered and to the winner go the unqualified spoils, there would be no advice and consent requirement in the Constitution. But the Founders, somehow presciently realizing that modern elections would not be waged over judicial philosophy, added a check on the nomination power to assure that the President’s choices really did command the approval of a broad cross-section of the population.

Which raises the question again: does a broad-cross section of America want a conservative court? Considering the only things President Bush will say about his type of justice is that they will be a “strict constructionist” and not be an “activist,” it’s worth asking whether anyone in America even knows what a conservative Court really would mean.

Let us for a moment take Bush at his word and assume that Harriet Miers will be every bit as conservative as those on the far right could hope for. Considering that Bush has never done anything moderate with his Presidency (see, e.g., tax cuts, invading countries and his lower court nominees) and considering how desperately he does not want to repeat his father’s mistakes (see, e.g., tax cuts, leaving Saddam in power, Souter), this is not a far fetched assumption. Whether or not the Senate ultimately votes to confirm her should be based on its assessment, indeed, each Senator’s assessment, of whether her conservative philosophy is shared by a majority of their constituents.

Conservative jurisprudence rests on a few core principles. Often first among them is that the federal government should not be permitted to solve certain problems, even if duly elected representatives favor such action. This vision of a limited federal government has been used in the past to strike down legislation that attempted to keep guns away from our schools and prevent domestic violence. This same conservative philosophy disapproves of such measures as the Voting Rights Act and the Civil Rights Act as beyond the bounds of federal power and likely would strike those down too if given the chance.

Another core conservative principle is that the state is sovereign and immune from liability even when it causes harm to its citizens. Under this anti-textualist reading of the Eleventh Amendment, even laws in which the states voluntarily agree to be sued when they trample on the rights of citizens or otherwise injure them must be struck down.

All this striking down of democratically-enacted laws is certainly ironic considering that conservatives claim not to be the “activists.” Yet as Professor Gewirtz showed in his recent study, so-called “conservative” members of the Supreme Court were far more likely during the Rehnquist years to impose their will in the place of the elected legislatures’ by striking down laws than were their so-called “liberal” counterparts. If anything, conservative jurisprudence is most decidedly “activist.”

What else would conservative jurisprudence lead to? How about a President who is able to detain Americans at will on nothing more than his own say-so? A conservative reading of Article II of the Constitution sees the President as nearly all-powerful in certain situations. So much for “limited government.” Or how about rules that permit the government to regulate the intimate relations of married couples? Conservative jurisprudence does not honor your right to privacy in your own home, let alone your bedroom. Or what about the end of the minimum wage, Medicare, and social security as we know it? Conservative jurisprudence sees these measures as “wrong turns” and likely would seek to end them.

While everyone gets hung up arguing about Harriet Miers’ qualifications or her conservative bona fides, Americans are missing a real opportunity—possibly the only opportunity we ever have—to talk about what kind of judicial philosophy we want on the Supreme Court. President Bush may have been elected by 51% of the American people, but only 34% of those were self-described conservatives. That’s a pretty substantial silent majority who don’t really want what conservative jurisprudence has to offer, whether it’s in the form of Harriet Miers, Michael Luttig or Superman. Unless we want to live under a radically conservative court that strikes down the laws we enact, takes away our government benefits and protections, and invades our most intimate decisions, it’s about time that the other 66% of us spoke up.

- Posted by Ian Bassin, President, ACS Yale chapter