When Bush Said He Had a Mandate, He Said HE…

I think this post over at Balkanization is a good follow-up to Amanda and Jesse’s ripostes to Glenn Reynolds:

One way of thinking about judicial nominations is that, while the court has a famous tendency to follow the election returns, the court and judicial nominations are also struggles over what election returns mean. Indeed, one might interpret the present debate over Harriet Miers as a debate over the meaning of 2004 (or a set of elections from 1994 to 2004).
For George Bush, the 2004 election was a personal triumph. Americans voted to put him in office. In particular, Americans trusted him to lead the country. It follows from this that the ideal judicial nominee to cement this electoral result is a nominee whose main qualification is personal loyalty to George Bush. If the rest of us are not 100% sure exactly what that means (well, we have a good idea what it means with respect to torture, but can debate whether it means overrule or narrow Roe), so what. Americans in 2004 voted to trust George Bush and we should trust him now.

For many conservatives, the series of elections from 1994 to 2004 were a triumph of a conservative constitutional vision. The precise content of this vision is subject to some dispute, compare the differences between Randy Barnett and Robert Bork, but what is crucial is that Americans have empowered this administration to make fundamental changes in the constitutional status quo, be that challenging principles of federal power dating from the New Deal, overruling Roe, providing greater protection for property rights, dismantling affirmative action and federal habeas corpus, or some other variation/combination. Harriet Miers is unacceptable because she does not embody any conservative constitutional vision. Edith Jones does, as do a host of other characters. Hence, but entrusting a crucial Supreme Court position to a personal loyalist, Bush betrays the revolution of 1994 to 2004.

I think this is right. Conservative bloggers and scholars seem to be under the impression that the election represented mandate #2, but Bush clearly thinks it’s mandate #1. And the thing is, given the way his supporters talked during the election campaign, Bush is in a way quite rational. For bloggers like Reynolds, the election was almost entirely about whether Bush or Kerry had a more appealing personality; it’s hardly surprising that a campaign that basically buried its domestic agenda would think that the election was about the Great Leadership of George W. Bush. (My favorite example was Roger Simon, whose mash notes to Bush could have been written by Harriet Miers herself. Check out this debate commentary; he doesn’t really understand any of the issues, but “There is no question that Bush is a better man than Kerry.” Awwww–Roger has a man-crush!) Moreover, with a few exceptions (like church-and-state issues), Republican strategists understand that Bush’s 51% triumph is not a “mandate” for Constitutional-In-Exile favorites like overturning Roe or rolling back the New Deal, at least in the sense that the Court doing these things would be anything but extremely unpopular. Miers’ nomination reflects the problems with trying to infer common policy goals from an election campaign that was strictly a personality cult.

In another good post, Balkin himself argues that the key antecedent isn’t so much Truman as the Gilded Age:

Following the Civil War, Republican Presidents placed a series of railroad lawyers on the Court with little or no judicial experience, but plenty of experience as counselors to business. That’s what Miers is essentially, a Texas lawyer with lots of business connections who advised corporate clients, including, most importantly, George W. Bush. He liked the advice she gave him, and so she followed him during his career.

Presidents don’t choose this kind of nominee because they want a revolution. They choose them because they will give the executive a free hand, and, perhaps most important, because the nominee will help ensure a pro-business climate.

I think this is right; Karl Rove’s admiration for Mark Hanna isn’t accidental. This again demonstrates the tension between being an ideological supporter of free markets and being pro-business. Bush is, and has always been, plainly in the latter camp, and where the two conflict the principles will get thrown under the train (that is now up and running again after the troops were sicked on Eugene Debs) every time. That many conservertarians seem only now to be figuring this out is really more embarrassing for them; Bush is doing what he’s always done.