Why it's so hard to have a constitutional revolution-- Part I
Cross posted at Balkinization.
I sympathize with the movement conservatives who are bemoaning the Miers nomination, even though I don't share their politics. President Bush promised them a forthright movement conservative in the mold of Antonin Scalia and Clarence Thomas. What he delivered instead was first a rock solid establishment conservative in Chief Justice John Roberts, and now an old-fashioned Dallas, Texas business conservative in Harriet Miers.
In the days to come, we are likely to get a lot of allegations that Miers is unqualified for the job. Don't be fooled. Sure, she didn't go to a fancy law school (neither did the second Justice Harlan, by the way). But in her own way she's just as qualified as lots of other people who have sat on the Court. She may not be qualified in the way that legal academics like myself might like, and not in the way that movement conservatives would like, but she fits a familiar stereotype of Supreme Court Justice-- the business lawyer with powerful connections.
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.
George W. Bush has always been an interesting hybrid of the traditional business conservative who came from a powerful Republican family and a religious conservative who found God. That combination has made him appealing to many different parts of the Republican coalition. But when the chips are down in his Administration, Bush has shown his true colors as a business conservative who above all wants a smooth ride for capital. That is what Miers offers.
Business conservatives are less interested in shaking up the world than in stability and in clearing a path for the promotion of their interests. Although their goals may often overlap with the goals of movement conservatives and religious conservatives, they are relatively uninterested in religious proselytization or ideological crusading. Business conservatives are pragmatists at heart, and the promotion of capital makes them more cosmopolitan in spite of themselves.
Religious and social conservatives may be shocked to learn that the Republican Party is the party of big business after all-- it has been since the Civil War-- and that big business is not always interested in the same things they are. That is why the Republican revolution in the courts inevitably will be a revolution on business's terms.
And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things. What business wants is stability, comfort, predictability, and an agile, productive, submissive and demobilized population. It wants a powerful executive that can protect America's interests abroad. It wants a Congress freed from federal judicial oversight that is able to dish out the pork, jiggle the tax code and deregulate the economy according to its ever shifting concerns and interests. And it wants a Supreme Court that will give a pro-business President and a pro-business Congress a free hand, a Court that will protect the rights of employers over employees, advertisers over consumer groups, and corporations over environmentalists.
It wants, in short, someone very much like Harriet Miers.
Giving the executive a free hand "is" the revolution, which GWB and his supporters among the corporate executive class want and, evidently, are about to get.
This President is building a fascist state -- authoritarian, corrupt, corporatist and incompetent. The only credible threat to this vision is that the corruption and incompetence, which are among its inherent qualties, make it weak and prone to catastrophic collapse.
America -- it was a great country while it lasted, but that's all over now.
October 4, 2005 9:20 AM | Reply | Permalink
Houston thinks it should be the center of the universe and the Houstonians take very good care of themselves. By September 16, 2001, the Defense of Houston was formed by an "ad hoc, self-appointed but broadly representative" group of prominent Houstonians led by James Baker. The website came complete with a section on bioterorrism.
The other day, I read that Texas is creating 12,000 jobs a month and you can bet that Texas is using your federal tax dollars to do it. The White House created Homeland Security so you don't know how much money is shoveled into Texas coffers.
The natural gas market is fixed by Texans who set out to corner it twenty years ago. There's penty of gas but the price goes up right along with oil.
Remember Cantor Fitzgerald, the company that lost so many employees to the 9/11 attacks? It manages Tradespark, an energy trading exchange that moved to Houston immediately after 9/11. Tradespark is a limited partnership of energy companies including Koch Industries, Dynegy, Dominion, TXU, Shell Coral and Williams.
In the months after 9/11, Tradespark reported a record number of trades. What I'd like to know is how many of those trades were with Enron and who made money on the deals. A lot of cash was siphoned out of Enron in 2001 and no one has been exactly forthcoming about where it went.
Awhile ago, I read that the Defense Department was running an acquisition program out of the Houston VA. This might sound screwy but I remember reading that it subcontracted the buying for the Jacksonville naval base to a group of Floridians in the panhandle. If I am right, everyone is getting a percentage off the top. That's what privatization really means.
There are three electrical grids in the United States: the Western grid, the Eastern grid and the Texas grid. Texas could turn off the lights in the rest of the country and move the capital to Houston.
Don't think it's a farfetched idea. Two Texas companies attacked California as soon as the Supreme Court installed Bush as president. Enron employees did not decide to steal billions from Californians without the consent of management. It doesn't work that way.
Texans have had their hook into my state ever since the mobbed up Al D'Amato brought Enron to Nassau County in 1992. Enron entered into a 23 year contract with the NY Power Authority in the early 90s and I have no idea who gets that contract or even what the terms are.
Who knows why but LIPA (Long Island Power Authority), run by a Gargano and D'Amato stooge, owns 18% of Constellation Nuclear Plant which is under the umbrella of the Constellation Group. The ruthless Wyly brothers head Constellation and I just know that they will stick LIPA for billions one way or another.
Sam Wyly currently is fighting to take control of Computer Associates and if he wins, CA is moving from Long Island to Texas and taking hundreds of good jobs along with it. I can thank that the piece of scum, Al D'Amato and the rest of the crooked board of driectors when it happens.
I know Houston is out to steal NYC's financial business which will cripple New York. The wizards of Wall Street are too full of themselves to notice.
In 1992, Itera, a mysterious Russian gas company, registered as a Florida business in Jacksonville. It's no secret that the management of Gazprom, the huge Russian state-owned gas company, stole Gazprom assets to start Itera. In 1993, Enron announced that it was entering into a partnership with Gazprom but nothing ever came of it.
It doesn't take a genius to figure out that Enron was the entity that paid off the Gazprom management. Ken Lay spent a lot of time in Switzerland around 1994 and maybe someone should nail him as to what he was doing there. And don't forget that James Baker and Robert Mossbacher became million dollar a year Enron consultants in 1993.
I'm almost certain that Enron's purchase of Garden State Paper Mill from Media General in July 2000 for $76m was a disguised Bush campaign contribution. Media General owns newspapers and television stations in the southeast. By selling GSP, Media got rid of a $90 million albatross including an unfunded pension liability. After Enron went under, GSP was closed and later sold for $6m.
If anyone takes the Texas mafia to court, Mieirs is there to stack the deck.
The rest of us should wise up.
October 4, 2005 9:31 AM | Reply | Permalink
Problem with this defintion is that fascist states are NOT incompetent: they are the epitome of “good government” competency. Mussolini made the traisn run on time, after all, and Hitler put millions of Germans back to work. Moreover fascist states are pro-business only to the extent that business are run to the benefit of the state: they are emphatically not laissez faire governments, and businesses which do not serve the national interest fall immediately under suspicion of treason. In today’s terms a truly fascist American government would not for one minute tolerate the amount of outsourcing and offshoring prelvant in American business, but would demand that jobs and production be brought home.
I’ve said this before on these threads: the Bush administration is not fascist. It is rather vaguely royalist/oligarchist having far more in common with the pre-Revolution Bourbons or the last of the Romanovs than with Il Duce or Deer Führer. “Dieu et Mon Droigt” is a better fit for George II than “Ein Volk, ein Reich”
October 4, 2005 10:02 AM | Reply | Permalink
Three Texas presidents, three wars. Texas IPOs.
October 4, 2005 10:19 AM | Reply | Permalink
Some short riffs inspired by your piece; hope no one gets too upset on the off-topic quality.
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.
Very interesting; I didn't know this, so thank you for citing it. Being a long-time student of American cultural history, I can already see where major effects might have been without even knowing their influence on rulings.
Presidents don't choose this kind of nominee because they want a revolution.
Ah but, I am thinking that the example you cite might have caused a metaphorical one. Reconstruction with a capital R. Full speed ahead. A new country comes out the other end? From carpetbaggers to robber barons, from small new nation of quirky independent iconoclasts and very culturally different urban communities to big influential country carrying a big stick, where everyone buys from the same Sears catalogue.
By the way, in that context, the comparison then with Miers strikes me as laughable. I'm not implying that you're making that argument--you even title your post Why it's so hard to have a constitutional revolution --but some other commenters here sort of are, i.e. 'Bush is trying to install a fascist state.' As a matter of fact, in this age of globalization, a 'states rights' Supreme Court will make us less of the lean, mean Federal machine we need to be to compete. Which makes me wonder how 'states rights' she is.
George W. Bush has always been an interesting hybrid of the traditional business conservative who came from a powerful Republican family and a religious conservative who found God. That combination has made him appealing to many different parts of the Republican coalition. But when the chips are down in his Administration, Bush has shown his true colors as a business conservative who above all wants a smooth ride for capital.
This is a truly excellent short and succinct description, much better than my babbling here yesterday trying to say the same thing. That just goes to show you what talented lawyer and teacher people can do. I am not trying to flatter here, rather, I am expressing amazement. If I were on a jury, I'd have a hard time not falling for your arguments. :-) And I look forward to "Part II."
October 4, 2005 11:19 AM | Reply | Permalink
You may or may not be right about Bush. However as Arlen Specter's concern about Congressional power would indicate the issue is not just the aggrandizement of the Presidency. The Rhenquist Court, a bit unevenly was reducing the power of Congress in respect to the states.
Part of the problem with most of these analyses and especially the Republicans cry for judicial restraint and the like is that they hate Souter but he is the very model of judicial restraint. Mostly the arguments are whose ox is being gored and whether you think the states or the federal governments are the best lever to accomplish your desired policy outcomes.
October 4, 2005 11:45 AM | Reply | Permalink
Both Webster and Lincoln represented railroads.
It will be interesting to see if anyone asks Meirs what she thinks about New York v Lochner whose reversal is the goal of the Contitution in Exile crowds desire.
October 4, 2005 11:48 AM | Reply | Permalink
Balkin - And what, exactly, does business want? Overturning the New Deal? The Constitution in Exile? The return of God to the public schools? The end of affirmative action? Outlawing abortion once and for all? Squashing gays and lesbians underfoot? None of these things.
Oh really? Is Balkin taking bets?
Reid is a fool and so is Balkin if Balkin believes a business conservative with no background in Constitutional law would never apply cores values to judicial decisions.
From the Seattle Times yesterday:
October 4, 2005 11:51 AM | Reply | Permalink
Any authoritarian state can appear to be competent from the outside. Things get done. Projects get built. The people who are supposed to get work, get work (and if it takes sending others to camps to make room, so be it). That doesn't mean they actually are competent, or that they focus their surface competence on the right things. Look at all the employment that the war in Iraq has generated, for example.
October 4, 2005 12:14 PM | Reply | Permalink
If you peel back all the layers of the White House onion, I think you find a grinning Dick Cheney sitting at its rotten core. And if you think about what's near and dear to Dick's blackened little heart, it becomes apparent that neither abortion nor business interests have motivated Bush's Supreme Court picks.
Dick cares about the presidency. Namely, he cares about the president's ability to invade countries without the approval of Congress, detain enemy combatants indefinitely, and torture prisoners of the U.S. military. With Roberts and Miers, he's got two justices who will toe the presidential line when the White House's actions are called into question by the courts or Congress.
Executive power isn't a sexy issue, but it's a big issue. In his brief time on the Appeals circuit, Roberts made it clear that his vision of federalism does not trammel Executive Privelege. And it's hard to imagine any justice being more sympathetic to presidential directive than Ms. Miers.
October 4, 2005 1:11 PM | Reply | Permalink
she fits a familiar stereotype of Supreme Court Justice-- the business lawyer with powerful connections.
It always annoys me when lawyers start talking precedence outside the strict confines of the law. Legal scholars should understand better than anyone why tradition is not codified but instead interpreted.
Were minds back then more astute than now? Can't we discuss the issue in lieu of the facts and present day reality without falling back on tradition and dogmatic thinking?
I'm not expressing an opinion on Miers, just that I'm sick to death of tradition when it comes to SCOTUS nominees, because the traditions seem completely busted, errors compounded. Too many times I’ve heard the sensible thing doesn’t conform with tradition. Well, maybe we need some new traditions.
Traditionally, no serious questions are asked or answered and there is no serious attempt to vet the appointees. Nor are congress allowed to fulfill the “advice and consent” role envisioned for them the last time people broke with tradition to consider things sensibly.
Our present system relies on the good nature of humanity generally, the number on the court canceling outliers, and dumb luck. We're certainly not doing a lot to vet appointees, and longer lives and other changing factors are seriously altering the equation of the SCOTUS away from tradition.
October 4, 2005 1:58 PM | Reply | Permalink
Problem with this defintion is that fascist states are NOT incompetent: they are the epitome of “good government” competency.
Ah, no. That's argument sits precariously on such an unbalanced set of assumptions, it should fall over from its own weight.
Mussolini made the traisn run on time, after all, and Hitler put millions of Germans back to work.
No Mussolini did not make the trains run on time more than anyone else. That’s a popular myth. People got back to work in a recovering German economy that would have put people back to work regardless, i.e. Hitler didn't do squat. If anything the types of work he steered people towards were unsustainable, like world domination for example, hence his contribution was specifically to put them out of work, and out of everything else too, later on.
the Bush administration is not fascist. It is rather vaguely royalist/oligarchist having far more in common with the pre-Revolution Bourbons or the last of the Romanovs than with Il Duce or Deer Führer.
That’s ok but a bit of semantic hair splitting. Fascists were known for draconian centralized authority in alliance with corporations to fuel nationalism which was then used to feed imperialism. Royalsist/oligarchs do much of the same.
October 4, 2005 2:18 PM | Reply | Permalink
Artappraiser,
I, too, think that Prof. Balkin has provided an excellent analysis of the unlikelihood that Bush expects to create a revolution.
You enjoyed a paragraph which Prof. Balkin used to describe Bush's motivations. I'd like to suggest a rewrite of Prof. Balkin's view (with apologies to the Professor):
I do not find Bush interesting - even in a clinical sense. I believe his business conservatism is best described as laissez faire. The typical characteristics are anti-tax, anti-regulation, and minimal government intervention. I am suspicious of his religious reformation.
Bush is willfully ignorant or at least anti-intellectual and his adapatation to the Midland environment in defense of his patrician New England roots certainly shaped his bullying and in-your-face personality. He never admits to error or uncertainty even though he cannot explain his positions logically.
I believe Bush's allegiance is solely to the privileged with whom he identifies and who tend to have capital. I don't think it is so broad as to be an allegiance to capital.
In short I think Bush has little empathy for anyone who is not already among those with whom he identifies. I think his idea is not one of revolution but rather one of solidifying the status of his conservative friends.
October 4, 2005 5:33 PM | Reply | Permalink
October 4, 2005 6:34 PM | Reply | Permalink
Reid is a fool and so is Balkin if Balkin believes a business conservative with no background in Constitutional law would never apply cores(sic) values to judicial decisions.
I have a very bad feeling about this nomination. When it is reported that Democrats were consulted one must ask which Democrats. Schumer certainly sounded as though his contact was perfunctory.
What we may be seeing is the wholesale selling out of the Democratic party principles by the republocratic wing. There is something psychically unnerving about Harry Reid (anti-abortionist) promoting this nomination. I cannot help but feel that the right of individuals to choose the destiny of her family is being sacrificed at the altar of the fundamentalists with this nomination.
In examining the credentials, it would appear that defeating Roe is the single reason for nominating Miers with the simple-minded thought that everything else is a coin-flip anyway. I still remember the Woodward interview in which Bush was asked about history and Bush basically shrugged and said he couldn't be bothered.
Why should he care if the SC were stacked with judicial frauds as long as they sugar-coated their opinions with the fabulation that they were channeling founding fathers who listened to right-wing talk radio. After all Cheney's wife travels with one who apparently speaks for the Republican party. On her next tour Jesus may guest star lecturing on the evils of liberalism. But I digress.
I see Meiers in black and white, the librarian in an Alfred Hitchcock thriller who looks like a grandma but has a heart filled with malice because no one but her knows how brilliant her secret love boss is. And nothing will stand in their way.
What is sinister here may be nothing more than yet another incompetent Justice administering an imaginary 1700's justice in a twentyfirst century world. But what have we done to deserve the Talibanization of the Supreme Court, the legislatures, the American Dreams we used to dream?
This is wrong. There are so many deserving, hard-working justices in this country who deserve consideration, liberal and conservative. People who I would trust the country's hands in - people who played by the rules and like the rest of us feel short-changed.
This is wrong. My kids and their teachers have for years been held to draconian standards of accountability - to be competent! And the message they get from the accuser is, "This is an insider's only game. Keep jumping through the hoops but you don't stand a chance, sucker."
We don't count but we'll be punished anyway. The fundamentalists have an urge to flog away at something. Meanwhile in the backrooms of Texas the money machine just keeps counting the cash.
Yeah, it smacks of cronyism, stupid affirmative action tricks, back room sleaze tactics but that's as predictable as the weather in republican administrations. When is something good going to happen during the Bush years?
Methinks, never.
October 4, 2005 7:32 PM | Reply | Permalink
That Miers and Roberts are anti-abortion is just frosting on the cake.
October 5, 2005 4:26 AM | Reply | Permalink
Problem with this defintion is that fascist states are NOT incompetent: they are the epitome of “good government” competency.
Quite the contrary. With no feedback mechanism, things inevitably turn into a mess. Look at the effects of central planning in the Soviet Union. JK Galbraith did an analysis of the Nazi economy that showed the only thing that kept it going was the drain of resources from conquered countries. Imperial Rome seems to have been very similar.
The modern day equivalent is the incompetently run US economy being sustained by cheap oil (cheap because it's valued in dollars) and capital inflows from Asia.
The implosion is coming.
October 5, 2005 5:39 AM | Reply | Permalink
What's interesting, aztec, is how "presidential power" is such a non-partisan issue. In theory, it affects Democratic presidents just as much Republicans. In that sense, there's something almost noble about Cheney's bloodlust. While helping business interests or overturning Roe v. Wade might target his conservative base, giving the president carte blanche to torture is for everybody! Dick Cheney, non-partisan extrordinaire.
For what it's worth, Justice Scalia is not totally on board with the Cheney's plan. In Hamdi v. Rumsfeld, Scalia and Justice Stevens joined in dissent to say that the President does not have the power the hold a U.S. citizen without charge indefinitely under the Constitution. So Scalia might not give a shit about the foreigners in Gitmo, he's not letting the Administration get away with it when it comes to Americans.
In some ways, Scalia's dissent in Hamdi is the perfect endorsement for Miers from Cheney's perspective. As conservative as Scalia is, he still bases many (or at least some) of his judicial opinions on solid legal principle. He might be an asshole, but he's not bought and sold by the White House. For Cheney, the only way to alleviate this problem is to put a yes-man on the court. Or in this case, a yes-woman.
And that's what is so frightening about Miers. I might disagree with 90% of what John Roberts decides as a justice, but at least I've got some confidence that he'll work within the contours of the law and show some consistency. Conversely, Miers is a hack. Her analysis will consist of a phone call to Karl Rove. She'll change the goal posts for every case to satisfy her masters.
October 5, 2005 6:43 AM | Reply | Permalink
Maybe this is true, although the Soviet Union is not a good example as it was not a fascist state (Communism and fascism may be similar in that both use state violence to achieve their ends, but otherwise they are not alike at all). Indeed, the Soviet Union was not even fascist under the loose subjective definition of the term (= any right of center government the speaker dislikes) we seem to be dealing with here.
However claiming there are no feedback mechanisms operating in the US economy or the US political sphere is absurd. Nor is oil purchased at cartelized market prices remotely the equvalent of looting conquered territory. Good grief, is it any wonder liberalism is in such straits when such noneense is touted as wisdom?
October 5, 2005 6:48 AM | Reply | Permalink
Great observation, Daniel.
The ultimate legacy of the Roberts court might be the weakening of Congress from both ends. As you say, on the one hand, this will be an extension of the Rehnquist Court's movement towards state's rights. The Roberts twist will involve the weakening of Congress with respect to the presidency.
The state's rights stuff should get pretty interesting if Roy Moore wins the governor's slot in Alabama. Moore is the quite the showman...if he wins, I'm confident he'll come up with some interesting ways to challenge the court (expect a funky mix of state's rights with seperation of church and state issues). And with Roy's populist instincts, you can bet he'll have broad popular support for whatever stunt he pulls...
October 5, 2005 7:46 AM | Reply | Permalink
How would a Justice Miers interpret McCain's proposed anti-torture legislation?
Remember, she took over the job Al Gonsalves had when the White House's torture policy was formulated. Would she recuse herself? If not, how would she interpet the plain meaning of McCain's language?
October 5, 2005 8:13 AM | Reply | Permalink
You deliberately mischaracterized what I said.
I drew the analogy with the Soviet Union because both it and Nazi Germany had centrally planned economies.
Re feedback mechanism: with its current trade deficit and out-of-control fiscal policy, the dollar should be in freefall. It is being held up by Asian countries (for their own purposes) buying Treasury bonds. That is a form of subsidy that the US receives by dint of its preeminent place in the world today. As an export market for those countries. Not the same thing as porphyry looted from Egypt, but a subsidy all the same.
Similarly the US' incredibly bad energy consumption habits are subsidized by the fact that oil is priced in dollars. Ask anyone who lives in Europe. If oil were priced in Euros, the US would be in very big trouble.
I'm sure you knew all this already, I just don't know why you chose to be so obtuse. Needed to vent, huh?
October 5, 2005 8:10 PM | Reply | Permalink
One concern of liberals has been Miers' stand on the commerce clause re: environmental causes. Nobody's worried whether she's an umpire or a batter. Does she even know we're playing baseball?
However, she named John Grisham as her favorite author. Its not exactly the education in constitutional law one would hope for in a SCOTUS nominee. But then again, think back to the plot of the Pelican Brief:
A young law student writes a legal brief speculating that SCOTUS assassinations were committed on behalf of Victor Mattiese, an oil tycoon wanting to drill for oil on swamp land currently occupied by an endangered breed of pelicans. The land is therefore protected from development, and the court case is an appeal filed on his behalf to gain access to the land. Mattiese, of course, wants to fill the vacancies with corporatists, or at least federalists, who clear his path to the oil.
Any fan of the book finds themselves on the side of Julia Roberts, the commerce clause, and the pelicans - vs. the conservative, federalist SCOTUS nominees, the oil tycoons, and the president.
Sounds like the making of a confirmation hearing question if you ask me, especially because it might have been the only context this nominee's ever had for thinking about constitutional law.
October 16, 2005 11:58 AM | Reply | Permalink