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Why has there been such a firestorm over President Bush's most recent nominee to the Supreme Court? One answer: the nomination of Harriet Miers exposes the fault lines of disagreement within the conservative coalition, and appears to have boxed out one significant—perhaps the most significant—component of that coalition.
The conservative coalition that elected Ronald Reagan in 1980 was always a bit of a three-legged stool. The anti-communist wing, or "Hawks," consisted of strong advocates of national power in the Cold War (and now the war on terror). The "Moral Majority" wing—let's call them "Doves"—wanted to reverse the declining moral trends in society, on issues such as abortion, homosexuality, pornography, and religion in public. The pro-business and free enterprise/personal liberty wing of the coalition—"Marketeers"—sought to roll back some of the more onerous government regulations, whether statutory, regulatory, or court-imposed via tort law, that were crippling the nation's economy. The glue that held these disparate groups together was an intellectual movement dedicated to recovering the original understanding of the Constitution—one that recognized the scope of federal power over matters truly national, such as national security, but that sought to revive the limits on federal authority in other areas of daily life, as the Constitution envisioned. The Hawks loved this theoretical formulation, of course, because it kept the national focus on national security. The Doves and Marketeers were comfortable with it, too. The doctrines of strict interpretation, limited government, and federalism promised an end to the judicial activism that had banned school prayer and imposed abortion as the law of the land, and it also meant (theoretically at least) less governmental regulation of the economy.
Rifts in the coalition began to appear long before the president's nomination of Harriet Miers. Success in the Cold War, for example (which undermined the urgency of playing to the Hawks), and the repudiation of his "No New Taxes" pledge (which lost many of the Marketeers), left the first President Bush with only the religious right part of the Reagan coalition, sending shivers down the spines of the other two legs of the coalition triad. Remember the Pat Buchanan convention of 1992? But the 1992 election loss was just a symptom of the real, underlying cause of the coalition's rifts, which had less to do with disagreements between the three groups than with a change in the underlying philosophy that held them together.
The big business component of the Marketeer part of the triad began to realize that a broad and preemptive federal regulatory power was better for them than having to deal with less sophisticated regulatory agencies in 50 different states, placing them squarely at odds with the limited government and federalism ideology. And the Doves, for their part, began to see a national government in their hands as a solution for the ills of society, a view equally at odds with limited government and federalism. In other words, the new glue that cemented the three legs of the governing coalition was no longer the original intent intellectual movement, but an expanded federal government in Republican hands. The era of "big government is over" was over.
When President Bush announced to the conservative coalition that Harriet Miers is the best qualified person for the Court, it is with this new understanding of the coalition triad in mind. Her inner-circle advice to the President in matters dealing with the war on terrorism has undoubtedly played to the Hawks, and the strongest devotees of the Nixonian understanding of executive power have been quick to praise the nomination. Her professional career as a top business lawyer has played to the big business component of the Marketeers, and it is therefore no surprise that the Chamber of Commerce was also among the first to warmly embrace the nomination. And of course there is Ms. Miers's much touted membership in a conservative evangelical church to ensure the enthusiastic support of the new Doves. Who can be opposed? Well, the old glue: Strict constructionists. Federalists. Libertarians. People like Randy Barnett, John Yoo, Roger Pilon, Bill Kristol, Charles Krauthammer, and George Will. We've been boxed out, and we know it.
The Supreme Court heard oral arguments earlier this month in a case that would prove a useful test of this thesis if Harriet Miers had already been sitting. At issue in the Oregon assisted suicide case is whether the Attorney General's re-working of a federal anti-drug law to pre-empt Oregon's assisted suicide initiative was permissible. For strict constructionists and federalists, the answer is a clear no. Article I of the Constitution assigns the lawmaking power to Congress, not to the Attorney General, and there is nothing in the existing statute regulating the interstate drug traffic that even hints at power over wholly-intrastate drug use for purposes of physician assisted suicide. In other words, the Attorney General's action violates the important (though admittedly moribund) non-delegation doctrine, and exceeds the scope of federal power under the interstate Commerce Clause as well.
President Bush and Vice President Cheney have asked their conservative base to "trust" that Harriet Miers will be a solid vote for their causes. Yet how would she vote in the Oregon case? Would she vote to uphold the Attorney General's assertion of power because of the immorality of physician-assisted suicide, pre-empting the deliberate (though, in my view, idiotic) policy judgment of the people of Oregon? Or would she strictly adhere to the Constitution's text and structural principals, voting to hold the Attorney General's regulation to be unconstitutional? Of course, she won't be able to answer such questions at her Senate confirmation hearings. But the answer she might be expected to give is clear from a quick review of who endorses and who lambasts the nomination. Preemption of state law is good for business, and preemption of state policy judgments that are morally troubling is good for morals. Limited government and federalism? We've been there, done that. A new era is upon us.
