Commentary from Vince Carocci

Conservatives and Liberals Do Have Something in Common, After All

October 2005

By VINCENT P. CAROCCI

So now we know. Hard-core liberals and hard-core conservatives DO have something in common, after all. Call it “ideological absolutism;” or “lock-step-think.” However it’s characterized, there’s no denying that on the bedrock issues, at both ends of the political spectrum, there is no room for deviation of thought.

I saw it first hand in 1992 when the liberal-dominated National Democratic Party prevented the Governor of the fifth largest state in the Union, Governor Robert P. Casey of Pennsylvania, from addressing its presidential nominating convention on the subject of abortion. The Party wanted to hear none of Casey’s dissenting views.

I see it now from the spectator’s row in regard to the firestorm President Bush’s nomination of White House General Counsel Harriet Miers to a seat on the United States Supreme Court ignited among the conservative base of his party. With nothing on the record in Ms. Miers background to certify her as a bona fide card-carrying judicial conservative, the political right (before her withdrawal) wanted little if anything to do with her.

This was particularly true among the punditry class. In the press, columnists George Will and Charles Krauthammer, two of conservatism’s most thoughtful and articulate voices, demeaned the nomination (in the case of the former) and called for a principled withdrawal (in the case of the latter, a strategy ultimately implemented.) On talk radio and talk television, hostesses and commentators like Laura Ingram and Ann Coulter were consumed by their ideological opposition to Miers. Ms. Ingram, in particular, needs to be careful--now and in the future. Her incessant rants on the subject, even after the Miers withdrawal, bordered on the insufferable, so much so it came close to qualifying her for membership in the “NAGs”—the “National Association of Gals,” an endearing term first coined by her conservative talk radio compatriot, Rush Limbaugh.

It would seem that hard-core conservatives were, and remain, more interested in a fight than a confirmation. To be sure, they would say it’s a fight over principle—originalism versus activism on the federal courts. But a fight, nonetheless.

Was Harriet Miers the best-qualified person President Bush could have chosen to fill this critical seat on the high court? That’s certainly debatable, depending on your point of view on the credentials necessary to serve. But once the President crossed the threshold in terms of her legal qualifications and her judicial philosophy, the suspicion here is that confirmability was a very significant consideration in his selection.

Certainly, President Bush could have chosen a proven judicial conservative in the mold of a Janice Rogers Brown of California, William Pryor of Alabama or Priscilla Owen of Texas—the list is much longer--who would have been more reassuring to his conservative critics. He might well go that route with a new nominee.

But that begs the question: Can anyone in that mold be confirmed to succeed Justice Sandra Day O’Connor on the high court? The recent confirmation record of the United States Senate suggests not. Democrats are likely to be unanimous in their opposition to a tried and true judicial conservative. Whether Republican maverick types like John McCain, Chuck Hagel, George Voinovich, Susan Collins, Olympia Snow, Lincoln Chafee—even the chairman of the Senate Judiciary Committee, himself, the Honorable Arlen Specter of Pennsylvania—will hold for such a nominee in what promises to be a knock-down-drag-out partisan and philosophical war is questionable at best. We shall see.

But in the context of the political environment at the time in the immediate aftermath of the Roberts’ nomination, and given Bush’s documented record on nominating judicial conservatives to the bench, the Miers’ selection made sense. In the early hours after her selection, the odds on a Miers’ confirmation were decidedly favorable. That is until the conservative rebellion erupted in full force. Soon it became no better than 50-50, if that. Meanwhile, the Democratic loyal opposition sat idly by, chuckling to themselves, while the Republicans stewed in their own soup.

Fair play would have dictated that Ms. Miers at least be given a chance to prove herself. The Senate confirmation hearings that Senator Specter was to chair in November would have been an appropriate forum. Some nominees, like newly installed Chief Justice John Roberts, proved themselves to be eminently up to the challenge. Others did not. Nixon nominees like G. Harold Carswell of Florida and Clement F. Haynesworth of South Carolina in the 1970’s, both sitting federal jurists at the time, are two failed nominations which come immediately to mind.

Carswell, in particular, was labeled to be so “mediocre,” that U.S. Senator Roman Hruska of Nebraska (a Phi Betta Kappa from Creighton University, incidentally) felt compelled to launch a public defense of the nominee on the Senate floor. “Even if he was mediocre,” Hruska declared of Carswell, “there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they…?” It wasn’t enough to save the nomination or the nominee’s reputation.

Harriet Miers had a very steep hill to climb, no doubt. But it says here that she deserved an opportunity to make her case in a public venue and establish her credentials. Until she had that chance, once they registered their opposition, hard-core conservatives should’ve called off their dogs. But in this era of “in-your-face” politics, that probably was not in their cards, and certainly not their style. In this respect, at least, conservatives are proving themselves to be as ideologically intolerant as their counterparts on the hard left. That, ultimately, is the irony of ironies in this entire episode.

# # # # #