Peter Levine

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October 05, 2005

the Meiers nomination and the opacity of political motivation

A a general rule, I strongly oppose the kind of political analysis and argument that asks about the motivations of decision-makers. People's motives are often mixed or downright mysterious, even to themselves. Motives may be irrelevant: politicians often do good things for selfish reasons and bad things with good intentions. When we look for leaders' motives, we must rely on insiders (who are powerful and rarely trustworthy). They become authorities, and citizens are mere spectators. If, in contrast, we consider whether a policy is good or bad on its face, we can make up our own minds based on public documents and evidence. Finally, the search for motives in a second-term presidency is genuinely baffling. GW Bush cannot be reelected; he may not care particularly about the outcome of the 2008 election; his financial backers have no leverage over him; he may not trust the "history books" to treat him fairly, whatever he does. So what does he want? You can go crazy guessing.

The nomination of Harriet Miers is, unfortunately, something of an exception to the rule that we shouldn't think about politicians' motives. That is because of what my Maryland colleague and friend Mark Graber calls the information advantage: "What both John Roberts and Harriet Miers have in common is that the administration knows a lot more about them than the rest of us." Graber subscribes to "a political regime theory of the judicial function. On this view, the constitution may be plausibly interpreted in different (not infinite) ways so presidents (and senators) are authorized by election to seek federal justices who share their constitutional vision." If that's the case, then it's crucial for presidents or their nominees to explain their visions, so that we can hold them accountable at the next election. But Bush won't say what his vision is, beyond uttering "cliches about modest justices and judicial restraint. In short, President Bush is clearly moving the court in a particular direction. He just isn't telling us what that direction is other than vaguely conservative."

Since we cannot debate Bush's or Mier's theory of the Constitution, which is unknown, all we can do is speculate about the president's motives. The blogosphere is great for such speculation, and in this case, it provides many options. For example:

Jack Balkin: The ruling conservatives want policies friendly to business, meaning "stability, comfort, predictability, and an agile, productive, submissive and demobilized population." They don't really care about divisive social issues that might mobilize voters. Hariet Miers is a corporate lawyer. While she may vote conservatively on issues like abortion, she doesn't have a big plan for moving the country rightward on those questions--and that's fine with business and with George W. Bush.

Kevin Drum: The President wants to avoid a fight; he wants to "fold." If he picked a well-known moderate, that would be folding too obviously. Harriet Miers, because she is a cipher with no relevant record, gives him the opportunity to back down without actually saying "uncle." (The implication, which Drum doesn't spell out explicitly, is that Bush would be disappointed and surprised if Miers made controversial decisions from the Court on his watch.)

GreyBlog (and others): Meiers is personally loyal to the president. Bush's biggest concern is a Supreme Court case involving his administration, say, on a matter of corruption or something to do with presidential powers. Miers is a safe vote if his interests are at stake.

David Bernstein: The President's priority is the War on Terror (including Guantanamo and the Patriot Act), just as FDR's priority was the New Deal. Roberts, because of his appelate rulings, and Miers, because of her work in the Bush White House, seem two of the most likely candidates to uphold the Administration on those issues.

These are some of the most interesting theories, but there is also plenty of speculation that ... Miers is willing to overturn Roe and Bush knows it; Miers is a relatively uncontroversial woman and Bush wants a female appointee; Miers is nice and respectful to Bush and he just likes her. Who knows, and--I would normally say--Who cares? But in this case, it seems impossible to have any more intelligent conversation than the snippets quoted above. It is now up to the Judiciary Committee to force Miers into a discussion of the Constitution, so that we can stop worrying about what GWB wants.

Posted by peterlevine at October 5, 2005 11:39 AM

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