Friday, October 21, 2005

Deferential Calculus

The New York Times

Deferential Calculus

Charlottesville, Va.

OF all the mysteries surrounding President Bush's nomination of Harriet Miers to the Supreme Court, possibly the biggest is this: How could a man who got it so right with John Roberts get it so wrong with Ms. Miers?

If the lesson of the Roberts confirmation was to pick someone superbly qualified and watch him whiz through his confirmation, why did President Bush almost deliberately flout that wisdom by nominating an inexperienced crony?

But Chief Justice Roberts and Ms. Miers may have more in common than you think. Both their nominations reflect a deep concern about a too-powerful court and the president's troubling new hostility toward the institution.

Consider this: Chief Justice Roberts's judicial philosophy - to the extent he admits to one - is of "modesty." Throughout his public life, an overwhelming jurisprudential concern has been the constraint of judicial power. He made it clear at his hearings and in rulings from the federal bench that the court exists not to act - not even to react - but chiefly to interpret passively. He has defended court-stripping legislation and argued for limiting judicial remedies.

In Chief Justice Roberts's world view, there are few situations in which the courts ought to be proactive - not when a student is raped by a teacher, and Title IX, the federal law barring sex discrimination in public schools, does not provide her with a meaningful remedy; and not when Virginia Medicaid patients seek reimbursement at reasonable rates, and the Medicaid Act creates no expressly enforceable rights.

John Roberts was unequivocal, at his hearing last month, that if Congress wants to protect the weak, it must write crystal-clear legislation. He would argue that at the end of the day, it's the court's job not to ensure equity or social justice but rather to narrowly construe the law as written regardless of whether the results are fair.

That's a significant departure from the approach taken by the Rehnquist court. Chief Justice Roberts's argument that "if it is not necessary to decide more, it is necessary not to decide more," sounds clever. But it substantially constrains the formerly broad reach of the Rehnquist court.

But nowhere is John Roberts more deferential as a judge than when it comes to the executive branch. In his rulings when he sat on the United States Court of Appeals for the District of Columbia, he offered expansive readings of presidential authority. He ruled on that court that the Geneva Conventions do not confer on so-called enemy combatants any individual rights. And he was unwilling to answer at his hearings whether Congress has the power to end a war started by the president.

If you think of John Roberts as the justice who will urge a far more sweeping judicial deference - particularly to the executive branch - the subsequent Miers nomination makes sense. If Mr. Bush wants to refashion the courts into a weaker, passive entity that exists primarily to check its own institutional prerogatives, then a former White House counsel like Ms. Miers is the perfect choice.

For one thing, having been present in the White House boiler room during the discussions of presidential power in wartime, Ms. Miers is primed to rule in President Bush's favor in the executive power cases. But more profoundly, and perhaps more symbolically, the elevation of Ms. Miers - someone with no judicial experience, no body of constitutional thinking or writing, nothing it seems, but her noble heart to recommend her - sends precisely the message that Mr. Bush wants to send to the courts: You don't need the most qualified candidate. You don't even need someone among the top 500 most qualified candidates. Why? Because the Supreme Court doesn't matter.

Justice Roberts and Ms. Miers represent a one-two punch for presidential supremacy: Justice Roberts would turn the Supreme Court into a body of nine constitutional plumbers - tinkerers around the margins with no affirmative place on the national stage. And Ms. Miers is a plumber - a perfectly competent lawyer with no national distinction. Her nomination would be an insult to the court if the court's work still mattered. But President Bush doesn't want it to matter.

The president has long claimed that Congress and the courts were usurping his powers. The hallmark of his presidency has been efforts to reclaim those powers, be it through Patriot Act provisions that curtail judicial oversight, his invention of new courts to deliver justice-lite to Guantánamo detainees or threats to veto legislation that would prohibit torture.

Now he has had two openings to render the court toothless. He has filled those vacancies with a brilliant jurist who apparently believes the court should sit on its hands in perpetuity, and a place-filler - his new judicial ideal.

Dahlia Lithwick is a senior editor at Slate.