I was asked yesterday by a prof over at Yale Law School how I explained the conflict within the Republican party over the Miers nomination. Thankfully, this was one thing I probably DO know something about–I’m finishing up a book on the conservative legal movement, and I think the theory in that book sheds light on the Miers’ flap.
The general theory of the book is as follows:
a) The New Deal/Great Society/Regulatory Expansion of the early 70s created a new regime, one characterized by a declining significance of electoral power, and a rising importance of “non-electoral mobilization.” In essence, the liberal victories of that period sunk into society (professions, universities, civil service) in ways that were very difficult to unravel through electoral means.
b) This had an important consequence for our party system. Downs famously defined a party as, “a team seeking to control the governing apparatus by gaining office in a duly constituted election.” Note that for Downs, “control of the governing apparatus” is assumed to be obtained exclusively through the mechanism of elections, and thus parties are defined by electoral activity–as a team of ambitious office-seekers. But what if, as in step (a) above, the “governing apparatus” cannot be seized exclusively through elections? Then that would naturally suggest that parties would “go where the action is” by mobilizing in non-electoral ways.
c) This is what I argue has happened. Groups like the Federalist Society and conservative public interest firms can best be understood as instruments of the non-electoral wing of the Republican party (just as left public interest law, much of the universities and parts of the professions can be understood as part of the non-electoral wing of the Democratic party). Conservatives created this non-electoral apparatus in response to the deeply entrenched structure of the modern activist state, once it became clear that their electoral victories would not permit them to attain substantial policy change beyond non-entrenched areas (like tax and defense).
d) So today each party has two wings–an electoral wing, which tends to be more populist and rests on a larger mobilized base, and a non-electoral wing, which tends to be elitist and defines itself more by intellectual principles. Each of these wings has substantial coordination within itself, and some degree of “coupling” to the other wing.
Thus back to Miers. What this conflict is really driven by is the temporary “decoupling” of the electoral and the non-electoral wings of the Republican party. The Christian Right, for example, is largely (but not exclusively) connected to the electoral wing of the Republican party. They care more about outcomes than constitutional principles, and thus are likely to be more susceptible to being persuaded that Harriet Miers will rule their way, regardless of her credentials or the quality of her mind. The lawyers who actively participated in the growth of the Federalist Society, on the other hand, think of legal change as a long-term game, one that is as dependent on shifts in “legal culture” and ideas as it is on who votes which way on the Court. Their conception of how you really create legal change is to produce an entire elite, trained in the top law schools, oriented to constitutional principle, and linked together into a network. Miers does not come out of that process of non-electoral mobilization, but out of the business wing of Texas politics–and hence her involvement with Bush’s electoral and political career.
In essence, the non-electoral wing of the Republican party sees legal change as a “long twilight struggle” that happens slowly and indirectly, and in that process Justices matter as much for the intellectual leadership they show as the direction they rule. That is why so many of the Federalist Society types (and the non-lawyers they have influenced) preferred someone like Mike McConnell or Michael Luttig, both of whom are clearly “one of them.” Interestingly, had either of these been nominated, both the electoral (at least the Christian conservatives) and non-electoral wings of the Republican party would have been pleased.