Powerline’s Paul Mirengoff has an interesting piece in the Daily Standard on the tension between President Bush’s political pragmatism and his pledge to appoint judicial conservatives, who by dint of their judicial conservatism are compelled to eschew the kind of pragmatism that appeared to be evident in Harriet Miers’ judicial philosophy (to the point such a philosophy could be gleaned from her political positions and speeches).  From “The Pledge”:

WHEN PRESIDENT BUSH nominated Harriet Miers, conservatives who balked at her lack of conservative credentials were assured by some that they should infer Miers’s conservatism from the president’s confidence in her. The skeptics generally responded with the maxim “trust but verify,” and suggested that Bush, a non-lawyer, might not be able to discern the absence of a strong conservative judicial philosophy.

Some (most notably the lawyer and blogger Patrick Frey) went so far as to question whether Bush himself holds a strong conservative philosophy when it comes to domestic issues. Much of the president’s domestic policy suggests that he is a pragmatist who, though possessing some conservative instincts, tends to put results ahead of conservative principles: Rarely are conservative principles absent from the president’s domestic policy, but often they take a back-seat to short-term problem-solving.

[…] This tendency to synthesize a central tenet of liberalism–that the federal government should expand in an effort to solve problems–with certain core conservative values suggests that Bush is a proponent not of liberalism or of conservatism, but of a “third way.” This label was often used during the early 1990s to describe the politics of those who supposedly eschewed both the traditional big government dogma of the left and the anti-big government dogma of conservatives. In these discussions, it was typically liberal politicians such as Tony Blair and Bill Clinton who were going the third way. In reality, though, the only synthesis they produced was between their big government dreams and the limits on their ability to achieve them.

BY CONTRAST, Bush seems genuinely to be striving for something new, and many observers (including Daniel Casse, Jonathan Rauch, and George Will) believe he has found it. They have suggested that Bush is a conservative, but of a different kind–a compassionate conservative, a big-government conservative, a strong-government conservative, an activist-conservative, or a demand-side conservative. However it might more appropriately labeled “domestic policy centrism,” “pragmatism,” or “third wayism,” because (a) it’s so different from traditional conservatism; and (b) when push comes to shove, Bush’s desire to solve the problem at hand tends to take precedence over the desire to uphold conservative principles.

DOES BUSH’S APPROACH to public policy spill over into the law, making him other than a traditional conservative in this realm, as well? It did in at least one major instance which, ironically, appears to bear Harriet Miers’s finger prints.

In 2003, the Bush administration filed briefs in two Supreme Court cases involving the use of racial preferences by the University of Michigan. The undergraduate admissions office, which employed a point system to determine whom to accept, was awarding points to African-American applicants solely because of their race in order to ensure that this group had the level of representation in the student body desired by the administration. The law school was taking race into account too. While it claimed not to be using a formula or shooting for a specific level of representation, African-Americans were admitted at roughly the same rate every year, and the average standardized test scores and college grade-point averages of those admitted always fell far below those of their white counterparts.

The Bush administration argued that both Michigan schemes were unconstitutional, but offered a different way in which the university could guarantee levels of black representation well in excess of what a truly color-blind admissions process would produce. The administration’s recommended approach, which Bush had instituted as governor of Texas, was for state universities to admit all applicants who finish in the top 10 percent of their high school class. Such a system would likely produce something close to the desired admission rates because at many

inner-city and other high schools, African-Americans and Hispanics don’t compete with white students. At an all-black high school, every member of the top 10 percent will be black.

THIS WAS VINTAGE BUSH PRAGMATISM. Both liberals and conservatives would like to see African-Americans well-represented among students at the University of Michigan and the University of Texas. But nearly every conservative believes (as most liberals once did) in the principle of color-blindness. Because color-blindness currently cannot produce the desired level of African-American participation at top state colleges and law schools, the desired outcome and the conservative principle could not both be vindicated in the Michigan cases.

The Bush administration nonetheless attempted to craft a synthesis, refusing to yield much, if at all, on the desired racial outcome, but doing what it could to cling to conservative principles. Thus, the “10 percent solution” was facially neutral as to race. African-Americans received no points or extra credit for being black. And the system rewarded achievement–finishing in the top 10 percent of one’s class is always an accomplishment. Unfortunately, though, Bush’s solution ultimately failed to vindicate core principles of color-blindness and non-discrimination. Choosing a facially neutral selection system for the purpose of achieving a racial result is a classic form of illegal discrimination under the civil rights law. Thus, problem-solving trumped conservative principles.

PRESIDENT BUSH’S APPROACH to the Michigan cases plainly bears more resemblance to the centrist pragmatism of Justice O’Connor (who found yet another way to split the difference in this instance) and Justice Powell than to the steadfast conservatism of Justices Scalia and Thomas. And, as we have seen, Bush’s approach to the Michigan cases is not an aberration–it stems from the same impulse that drives his handling of a range of domestic policy issues.

But this does not mean that Bush is destined to be unsound from a conservative standpoint when it comes to nominating judges. To the contrary, we know that he is mostly sound, having nominated many conservatives to the appeals courts and one to the Supreme Court. Bush said he would nominate Justices in the mold of Scalia and Thomas, and Bush is a man of his word. But Bush is not immune from error in identifying potential justices in that mold. Not just because he’s a non-lawyer, but also because when it comes to public policy he’s not conservative enough by inclination automatically to prefer practitioners of judicial restraint to judicial pragmatists. Accordingly, when Bush makes his next selection, “trust but verify” should remain the operative maxim for conservatives.

This last bit—trust but verify—is precisely correct , and it speaks to the actual concerns many legal conservatives had with the Miers pick.  For me, race-based affirmative action was always a more clear-cut indicator of the President’s—and, by extension, Miers’ (whom Bush assured us shared his own)—judicial philosophy than was Roe.  And as I argued at the time, the Administration’s position on the Michigan affirmative action cases revealed the very kind of judicial pragmatism legal conservatives had always found problematic coming from O’Connor—which, perversely, made Miers the perfect replacement pick to those who view the Court through the prism of identity politics, which has now been expanded to include the category of “swing vote,” ostensibly a Justice willing to reach for cultural and political consensus in shaping decisions, oftentimes at the expense of a coherent and consistent judicial philosophy on which to persuasively hang rulings.  Miers’ lack of training in Constitutional Law gave rise to the fear that she would act on her political pragmatism—and that should not be restrained by any kind of consistent legal principle—leading to precisely the kind of sloppy decisions O’Connor would pen on those occasions where she was clearly letting her politics get the better of her legal judgment.

And legal conservatives—not far right extremists, as the press and Democrats now argue were responsible for sinking the Miers nomination—simply would not accept results-oriented jurisprudence.

In short, we rejected Harriet Miers because we recognized that the courts are never served by judicial activism, whether it proceeds from the left, the right, or the pragmatic center.

To his credit, the Alito nomination suggests that Bush has gotten that message loud and clear.