Who’s My Favorite Justice? Ah, er Warren…er, ah Burger.

Today’s Washington Post has a story that, contrary to an earlier dispatch, when Harriet Miers was asked by Sen. Patrick Leahy (D-Vt.) who her favorite Justice was, she responded “Warren”—by which she didn’t mean Earl Warren (as earlier reported) but Warren Burger; evidently she was having trouble distinguishing between the two. Which tells you something right there. But neither man was an ideal Chief Justice. Earl Warren was a political pragmatist in search of a philosophy who was taken into camp swiftly by the Court’s senior liberals and Warren Burger who had insisted he favored strict construction became a Seeker of Truth as well, voting for Roe v. Wade in order to give one whom he mis-read as a fellow conservative, Harry Blackmun, the opportunity to write a restrictive decision (which Blackmun took and wrote boldly). All of which shows that Miers fits the description of a pragmatist herself. I worked with lawyers—and brilliant ones, corporate ones and ones from blue-chip law firms—for 27 straight years. I played a little game with them. Not a single one—nary one—could tell me who Hans Kelsen was*

This intellectual vacuity will spell great problems for conservatives if Miers is confirmed. President Bush tells us she won’t change over the years although she did change up to now in many respects: changing from a Catholic to an evangelical, changing from a Democrat to a Republican, changing from a liberal to a conservative, going to a strongly pro-life church while at the same time contributing to pro-abort Al Gore. But never fear, she won’t change from now on. Odds are she will change and the change from conservative to liberal will be a gift that keeps on giving for the Democrats. Conceivably she might vote the way Bush would like her to vote so long as he’s president—but after that if she drifts, it will be a steady reminder of the fact that the 43rd president bull-headedly stuck to the choice of his personal attorney despite all criticism. That will lead to a cynicism in the base to the point that conservatives themselves will forget about politics out of the sense of futility.

The Big Business global futurist named Friedman, whose views I critiqued the other day, made a major mistake in opining that social conservatives have no place to go except the Republican Party. Social conservatives have a great many things to do that can take the place of voting, if they are politically turned off. They belong to and are active in churches, in faith-based charities that can absorb their time. It’s secular liberals who more generally have no place to go but politics. That’s why the Harriet Miers appointment can be the worst thing to happen to social conservatism. Bush can easily go down in history as a copy of his father who said “read my lips: no new taxes” and then violated his precept. In most things, the stubbornness, the mulish obstinacy of George W. Bush is an asset. But when he makes a mistake, it’s a disaster. The only recourse is to defeat her in the Senate.