Sunstein Discusses Bush's Post-Meirs Problem

Cass R. Sunstein

October 27, 2005

After the withdrawal of Harriet Miers, the question is whether any nominee who is acceptable to the president's base will be acceptable to the country. For the first time in the nation's history, this is a serious question. Here's the reason: Much of the base is asserting a series of litmus tests, both on particular issues and in general. A nominee who passes the litmus tests will face terrible problems in the Senate.

The conservative objections to Miers were twofold. First, she was deemed underqualified. Second, she was deemed politically incorrect. Many principled conservatives emphasized the qualifications problem, insisting that she lacked relevant experience. (And on this issue, there was a pleasing agreement across ideological lines.) But the real intensity, for many conservatives, came from the fear that she was not a true believer--not a conservative in the mold of Scalia and Thomas. It would have been most interesting to see how the nomination would have been received if Miers had had the same under-qualification problem but nonetheless been an identifiable member of the conservative movement, a predictable vote alongside Scalia and Thomas.

Amazingly, some conservatives appear to think that no nominee is acceptable unless he or she believes that the Constitution should fit with the "original understanding" of those who ratified it. This is an extreme position--as a practical matter too extreme, very possibly, even for a Republican-dominated Senate. For example, Thomas, an avowed originalist, has said that the Supreme Court should overrule not five, not ten, not fifteen, but about two dozen of its own precedents. Thomas does not merely believe that Roe v. Wade should be overruled. He also believes that there is no general right of privacy; that affirmative action is almost always unconstitutional; and that the Establishment Clause, limiting the mix of church and state, does not apply to the states. And that's just the tip of the originalist iceberg. A nominee with Thomas's views--and many conservatives are insisting that the next nominee must have those views--would be most unlikely to be confirmed.

Indeed, some conservatives seem to believe that the constitutional positions of a Supreme Court nominee should overlap, on the great issues of the day, with the political positions of the extreme wing of the Republican Party. And here the president's base appears willing to hold his feet to the fire. In well over two hundred years, the nation has not seen anything like this before.

Cass R. Sunstein is a contributing editor at TNR. He is the author of Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong For America (September 2005).