Fraters Libertas

Losing Nathan: Part Deux

More from Nathan, the disaffected conservative who expressed his frustration with the Miers nomination last Friday:

Upon further reflection, my opinion is unchanged. But my reasoning may not have been completely explained. If you don't mind an elaboration:

I consider myself a "movement conservative" in the fashion of the Original-WFB-National-Review and Reagan's-Goldwater-Nomination-Speech type. I came to this set of political beliefs early and pretty much alone - out of five Republicans on campus in 1980, I had the only Reagan bumper sticker. I believed the only way to correct the abuses of the Supreme Court was to help elect politicians who would nominate and confirm better justices. I wasn't alone in that belief. People like me went to work electing the right people to office, and raising a crop of originalist jurists.

Okay, 25 years later we've got our people in place and several vacancies coming up. We have reached the point where it ought to be possible for a strong and principled leader to nominate an originalist and get him or her confirmed, using the nuclear option if necessary.

I wanted Bush to elevate Scalia to Chief, fill Scalia's spot with someone like Michael Luttig, and fill O'Connor's spot with someone like Janice Rogers Brown. I wanted him to go to the Senate leadership and use some of that famous political capital to twist arms. I wanted him to tell Arlen Spector that we're cashing in his Judiciary Chairmanship marker so get on board or face our everlasting wrath. And I wanted him to take the fight to the American people, using his bully pulpit, to explain why original constructionist judges are critical, why the people should tell their senators to confirm these judges.

Instead, I got Roberts and Miers. I'm not satisfied.

Some of the President's supporters have accused those of us who criticize the Miers nomination of being sexist.

I don't give a damn about the nominee's sex. I care about her understanding of the Constitution. I want an original constructionist, not a living document-ist. I want a justice who will say "the Constitution grants the government no power to act so the law is stricken down" rather than inventing emanations and penumbras to cover hypothetical rights, or invoking foreign law to invalidate American law, or musing upon a person's fundamental right to define his own concept of self.

In my letter, I called the nominee "Mystery Old Maid Miers." I shouldn't have. I was trying to find an alliteration of M's, something to tie in with the idea that mystery meat was worse than hot dogs and more insulting, considering conservatives' years of laboring in the vineyard, and also tie to the idea that both Roberts and Miers are unknowns. But by choosing the phrase "Old Maid," I ended up taking a shot at Ms. Miers' personal life. That was wrong, I regret it, and I apologize for it. It's none of my business whether she's married or not. It's only my business how she views the Constitution - as originally written, or as a living document, subject to reinterpretation at will.

Her sex and marital status has nothing to do with my opposition.

We've also been accused of elitism. Ms. Miers graduated from Southern Methodist U, she ran a regional law firm instead of a national one, she's never been a law professor, she's never been an appellate judge, she had a minor government post aside from being the President's personal lawyer, so she's not elite enough to be qualified. I don't care about any of that, either.

I graduated in the middle third of my class from a night school, worked in tiny offices, and had a minor government post. But I can tell you why Roe v. Wade was wrongly decided, why the cases that followed and expanded Roe also suffer from the same intellectual problem, and what ought to be done about it. It's not a matter of credentials or resume padding. It's a matter of having thought through your personal philosophy as to the proper role of government.

So my fundamental question when evaluating any candidate is: Does this nominee for Supreme Court Justice understand what the Founding Fathers were trying to accomplish and why, and is that person willing to uphold those principles? Or not? And most importantly of all - how do I know?

Roberts was a mystery man. I don't like that. I don't believe a white guy living in America today can live his entire life without having a single conversation about abortion, gun control, or affirmative action. If Roberts ever had one with anybody - even a college dorm room bull session - I haven't heard about it. The fact that the usual suspects opposed him was a good sign - maybe they knew something about him that I didn't know. So okay, Roberts got my reluctant support, taking the President's word for it, settling for hot dogs this time but trusting that next time we'd have steak for sure.

But I really don't believe any woman living in America today can live her entire life without taking a position on abortion. Especially not a lawyer who's a public figure in the Bar. Not a chance. The fact that the usual suspects are lining up to endorse her makes me assume the worst - they know something about her that I don't know, and it's not a good thing.

No steak here, either. Not even hot dogs. "Mystery meat" that I strongly suspect may not be meat at all, but some vegan tofu concoction they're trying to slide past me while saying "Trust me."

Nice try, but I remember learning that line from the master: Trust, but verify. And in this case, the verification doesn't look good at all.

The part that really gets me down isn't the wasted years, it's that we wasted a once-in-a-lifetime opportunity. Original Constructionists aren't going to get another chance to appoint two justices (or possibly three if Stevens goes soon). Kennedy, Souter, Ginsberg and Breyer are all about the same age as Scalia and their spots will be filled in Hillary's first or second term. So we needed to act now to secure the court for the future. And we didn't. So to Hell with them, I quit.