Will The Real George W. Bush Please Stand Up?

FORECASTS & TRENDS E-LETTER
By Gary D. Halbert
October 11, 2005

IN THIS ISSUE:

1.  Bush Disappointed Conservatives From The Beginning

2.  Bush Was Re-Elected For Sake Of The Supreme Court

3.  Bush Should Have Made Antonin Scalia Chief Justice

4.  Bottom Line: Bush Just Wasn’t Up For The Fight

5.  Then The Real Kicker – Harriet Miers. . . Who???

6.  And Harry Reid?  What Are We Supposed To Think?

7.  What Could Bush Have Possibly Been Thinking?

Introduction

Remember the old game show “To Tell The Truth?”  They had three contestants, all claiming to be the same person.  A panel of celebrities would ask them questions in an effort to identify which one was telling the truth.  At the end, the host would say, Would the real     (name)    please stand up?

Do you also remember how many times the panel was wrong?  A LOT! 

Well, in the past few months, and especially on Monday, October 3, I think we saw the real George Bush stand up. And it wasn’t the person we all thought it would be!

With the nomination of White House Counsel Harriet Miers, President Bush outraged most in his conservative base, more so than anything he had done to disappoint them in the previous five years.  Many high-profile conservatives have lambasted the president in the media ever since.  Every conservative I have spoken with since the nomination has been livid.

It is one thing for Bush to draw serious criticism from heavyweight, hard-line conservatives such as Bill Kristol (Weekly Standard), Rich Lowry (National Review) or Robert Novak (Chicago Sun-Times).   It is entirely another to be sharply criticized by the likes of George Will (Washington Post/ABC News), Peggy Noonan (Wall Street Journal, etc.) and last but not least, Rush Limbaugh.

George Will and Peggy Noonan are known loyalists of President Bush and his administration.  Some have called them “shills” for Bush in the past.  Rush Limbaugh, as much as I like him, is a shameless shill for the president.  Understand, I tend to agree with Will, Noonan and Rush most of the time, but it is hardly debatable that they have some loyalty to President Bush.

So for Bush to incite the ire and criticism of these three, you know he is in real hot water with his conservative base across America! 

Suffice it to say that with this second Supreme Court nomination, President Bush has permanently alienated many conservatives.  The wheels are falling off his administration, and the Republicans’ chances in the 2006 elections are diving.  We will talk more about this as we go along.

Bush Disappointed Conservatives From The Beginning

Let me begin by saying that I am a conservative on just about any issue.  I voted for George W. Bush four times, twice for governor of Texas and twice for president.  While W. wasn’t as conservative as I would have liked as governor of Texas, he was certainly preferable to me over Al Gore in the 2000 election.

In his first term as president, Bush wasted no time frustrating conservatives. His first disappointment was the “No Child Left Behind Act” which Bush signed into law in early 2002.  This massive bill, which was largely crafted by Ted Kennedy, with Bush’s permission, greatly expanded the role of the federal government in public education.

The education bill was our first hint that Bush could spend with the best of the liberals in Washington.  The education bill was loaded with pork .  Conservatives were disappointed, but many concluded that, if you have to throw lots of taxpayer money around, spending it on kids might not be so bad.  Basically, Bush got a pass on that one.

Conservatives’ next major disappointment came with Bush’s implementation of steel tariffs in March 2002 to appease his supporters in the steel industry (these tariffs were repealed in December 2003).  Conservatives were miffed by this protectionist act but remained patient with Bush.

In May 2003, conservatives were again disappointed when Bush signed the massive $250 billion farm bill, which was also loaded with pork .  One conservative commentator referred to the farm bill as “corporate welfare for agribusiness.”  How true.

Next came the Medicare prescription drug bill in late 2003, a $400 billion package that was also loaded with pork.  We can debate whether prescription drugs should be provided by the government, and the pros and cons of this particular bill, but what is not debatable is Bush’s big spending.

By the end of 2003, most conservatives were not too happy with President Bush.  He was clearly not as socially or fiscally conservative as the man they thought they had elected in 2000.

Bush Was Re-Elected For Sake Of The Supreme Court

By the time the 2004 election season rolled around, many conservatives were still extremely frustrated with President Bush.  Even though he had clearly proven not to be the conservative they wanted, and while it had become clear that the war in Iraq had not been adequately planned for, conservatives turned out in record numbers to re-elect Bush.  Why?

Well, obviously, many conservatives could not bring themselves to vote for John Kerry, but that doesn’t explain the record turnout for Bush.  Conservatives, more than anything, voted for Bush because of the Supreme Court.   Everyone knew that the odds were very high that Bush would get at least one, if not two or three, Supreme Court nominations in a second term (see my October 26, 2004 E-Letter).

We all heard Bush promise countless times on the campaign trail that, above all, he would appoint conservative Justices who would uphold the Constitution and would not legislate from the bench.  His promises seemed sincere, and conservatives worked hard to get him re-elected, largely for that very reason.

Actually, President Bush did make some very good choices with his lower court nominations.  The Democrats filibustered several of his circuit and appellate court nominees.  Only when the “Gang of 14” made their deal did some of his conservative nominees finally get confirmed.

But conservatives have been waiting for 20 years for the day when a Republican president would have a chance to appoint a couple of conservative Justices and move the High Court more into the mainstream thinking (ie – conservative) of the American people.  That day has come, and most of us conservatives are disappointed, angry or both!

What President Bush Should Have Done

When Associate Justice Sandra Day O’Connor gave her resignation on July 1, conservatives were jubilant.  In a matter of days, there were lists of possible replacements floating around.  There are many conservative judges – both men and women – in the circuit and appellate courts who have years of judicial experience, great intellects and a record of how they ruled on many key issues.

You’ve probably seen the so-called “short list” - or at least what we thought was the short list.   The names of possible replacements for Justice O’Connor included Michael Luttig, Michael McConnell, Samuel Alito, Emilio Garza, James Harvie Wilkinson and a few short lists also included Alberto Gonzales and John Roberts.  That’s the men.

On the women’s list were Janice Rogers Brown, Edith Jones, Priscilla Owen, Edith Clement, Karen Williams, Alice Batchelder and Consuelo Callahan.  Harriet Miers name was on no one’s list .

Almost all of the men and women noted above are considered to be conservatives to one degree or another.  With the exceptions of Alberto Gonzales, John Roberts and Harriet Miers, I think most conservatives would have been satisfied with any one of them for the most part, certainly with any of the first three or four names on the two lists.

But for reasons I will contemplate below, President Bush nixed every name on the list of candidates above and went with John Roberts and Harriet Miers.

Bush Should Have Made Scalia Chief Justice

Let’s go back over the series of events.  Justice O’Connor gave President Bush her resignation letter on July 1, but agreed to stay on until her replacement could be appointed.  Bush nominated John Roberts to fill her seat on September 5. 

Most of us conservatives were disappointed by this choice. Roberts was touted as an intellectual heavyweight, legal scholar, etc.  Yet few Americans had ever heard of him, his judicial record is not well known and he is not considered to be a conservative heavyweight.   

Then on Saturday, September 3, Supreme Court Chief Justice William Rehnquist died due to complications related to thyroid cancer.  Bush then had two Supreme Court choices to make.  Conservatives were again jubilant.

The obvious choice was to elevate Associate Justice Antonin Scalia, the senior sitting Justice, to replace Chief Justice Rehnquist.  This was a no-brainer.  Despite all the talk of what an intellectual dynamo John Roberts is, he is no match for Justice Scalia – until proven otherwise.  Scalia has long been considered the ultimate intellect on the High Court, and he is an unquestioned conservative.

Justice Scalia is 69 years old, not really old by Supreme Court Justice standards.  He has served on the High Court since he was nominated by Ronald Reagan and unanimously confirmed by the Senate in a 98-0 vote on September 17, 1986.  He has been a consistent conservative voice on the High Court, along with Chief Justice Rehnquist for the last 19 years.

Justice Scalia had earned the right to be Chief Justice, in spades.   Yet Bush passed him over for a rookie, John Roberts.  I was shocked and angered by this.  Justice Scalia must have felt that his teeth had been kicked in.  How sad for him.

If I were Justice Scalia, I think I would resign. . .  Good thing I’m not.

Bottom Line: Bush Just Wasn’t Up For The Fight

Many conservatives are still baffled as to what just happened, but it is clear that Bush simply wasn’t up for the fight.  As noted above, conservatives have waited 20 years or longer for this fight.  We were ready.  Bring it on.  Despite our policy disappointments with Bush, and his big spending, we believed that when it came to the Supreme Court, he would keep his repeated campaign promise.  He didn’t .

It is still unclear why Bush was not ready for a fight.  Washington does this to people, especially conservatives who don’t really know how to fight ideological and no-holds-barred battles.  Argue/justify it any way you want – low approval numbers, war in Iraq not going well, advisors giving him bad advice, etc. 

Whatever the reasons, President Bush caved.  He was not willing to endure the political fight that would have followed if he had nominated one of the truly conservative choices for the Supreme Court.  He broke his promise, just like his father before him.

Half of the Democrats voted to confirm John Roberts as the new Chief Justice of the Supreme Court.  That should tell you something.  Don’t get me wrong, I believe that Roberts is an intellectual dynamo; he seems to be an admirable man; he may be a solid conservative; and maybe he will be a great Chief Justice for the next 25-30 years or longer. 

But that remains to be seen.  With Scalia, we knew what we were getting.   President Bush must have been thinking of his legacy when he passed up Justice Scalia for the much younger Roberts, who could serve for 25-30 years, and who he knew he could get confirmed.

Then The Real Kicker – Harriet Miers. . .  Who???

Most conservatives bit their tongues over the Roberts nomination, and remained ever confident that Bush’s second nomination would surely be a known commodity – a sure conservative.  I was surprised at how confident some of my conservative friends were that we would get a good second pick.  “Now he has to…,” some said.  I was not so confident.

The Democrats warned the White House that a big fight would erupt if Bush nominated one of the “A-List” conservative judges as his second pick.   “Filibuster” was quietly whispered.  They also urged the president to pick someone of diversity, or else face a fight.  They threatened, Bush backed down.

President Bush stunned everyone when he announced on October 3 his nomination of Harriet Miers to replace Justice O'Connor.  Conservatives are outraged!  I don’t think Bush and his advisors had any idea how negatively the conservative base would react.

Bush immediately went on the defensive.  He ridiculously called her “the most qualified candidate.”  Say what?  Harriet Miers is more qualified than Michael Luttig or Janice Rogers Brown?  Not hardly.  What an utterly stupid and condescending thing to say to your base!

* Be sure to read the first link in SPECIAL ARTICLES below, which has a detailed look at Harriet Miers’ resume and accomplishments.  You will be surprised.

“Trust me, I know her heart… she won’t change…”   Sorry, Mr. President, but she did change.  In the 70s and 80s, she was a Democrat; she gave money to Al Gore and other liberals.  It’s good that she became a Republican in the 90s.  But just because she’s a Republican now, that doesn’t tell us if she is a solid conservative.  And she could change again, and then we could have another David Souter, who your father nominated.

“She’s extremely accomplished.”  That she is, no doubt about it.  But have all of her great accomplishments prepared her for the Supreme Court?  Not in my opinion.  She has never been a judge.  I have lived in Texas all of my life, and I don't recall ever hearing her name before the president trotted her out on October 3. 

And Harry Reid?  What Are We Supposed To Think?

Within two hours of Bush nominating Harriet Miers, she was on all the networks, standing on Capitol Hill beside none other than Harry Reid, the Senate Minority Leader, who is one of the most liberal politicians in Washington, and a known Bush hater. 

Yet Reid was singing Harriet Miers’ praises for all the world to see.  He even boasted that he had personally recommended Miss Miers to the president for the nomination!  I was sitting in the lunchroom of our office watching this, and I absolutely could not believe what I was seeing.   

The question that almost all conservatives want answered is this: Mr. President, what are we supposed to think?  How are conservatives supposed to feel when you disrespect Justice Scalia and put a newcomer in as Chief Justice?  And then trot out an unknown, your personal lawyer, who has never been a judge, and pass over such great minds and track records as the true conservative judges noted earlier in this E-Letter?

Mr. President, how can conservatives not be outraged?  How can we not feel betrayed?  How can we not conclude that you weren’t up for the fight?

If you were trying to alienate your conservative base that put you in office, you’ve done a really good job!

In Defense Of The President – Maybe

Bush apologists defend him thusly, and they have a point.  The Republicans hold a 55-44-1 majority in the Senate.  Yet there are five or six Republicans who probably should be Democrats based on their politics and their voting records.  They are Lincoln Chafee (RI), Susan Collins (ME), Mike Dewine (OH), Lindsey Graham (SC), Olympia Snowe (ME) and John Warner (VI).  

Those defending the president make the point that he simply did not have the votes to get a true conservative judge confirmed in the Senate.  So he had no choice but to go with the lesser known John Roberts pick and the virtually unknown Harriet Miers pick, or lose.

The assumption is that the six Republican senators above would all have voted against a true conservative nominee, along with all of the Democrats.  Maybe, maybe not.   

But it misses the point.  The point is, as the president, and as the leader of the Republican Party, you have to take the fight to these people!  Expose them.

If President Bush really is a conservative, then he has to nominate conservatives to the High Court.  Who cares if you lose?  Nominate Justice Scalia to Chief and fight for it.  Nominate the very best conservatives for the Court, and fight for them.

Go on National TV and use the “Bully Pulpit” to tell Americans why you believe these are the best nominees.  Explain to the American people why it is members of your own party that are going to sink those nominees.  Expose them.  Fight them.

Why is it, Mr. President, that you’ve so rarely used the Bully Pulpit?   Is it because Karl Rove has told you that you are not a good speaker?   Well let me tell you, I have seen you speak many times in Texas, and you are a darned good speaker when you are passionate about the issue.

Can you not get passionate about conservative appointees to lifetime positions in the highest court in the land?  Apparently not.

What Could Bush Have Possibly Been Thinking?

Every conservative political analyst I read is asking this very question.  As noted at the beginning, when you get the likes of George Will, Peggy Noonan and Rush Limbaugh on your case – and I mean really on your case – that’s bad.   Here are some excerpts:

PEGGY NOONAN (one of my favorites): Here are some maybes. Maybe the president has simply concluded he has no more elections to face and no longer needs his own troops to wage the ground war and contribute money. Maybe with no more elections to face he's indulging a desire to show them who's boss. Maybe he has concluded he has a deep and unwavering strain of support within the party that, come what may, will stick with him no matter what. Maybe he isn't all that conservative a fellow, or at least all that conservative in the old, usual ways, and has been waiting for someone to notice. Maybe he has decided the era of hoping for small government is over. Maybe he is a big-government Republican who has a shrewder and more deeply informed sense of the right than his father did, but who ultimately sees the right not as a thing he is of but a thing he must appease, defy, please or manipulate. Maybe after five years he is fully revealing himself. Maybe he is unveiling a new path that he has not fully articulated--he'll call the shots from his gut and leave the commentary to the eggheads. Maybe he's totally blowing it with his base, and in so doing endangering the present meaning and future prospects of his party.

GEORGE WILL: It is not important that she [Miers] be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument" for her amounts to: Trust me. There is no reason to, for several reasons. He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections. Furthermore, there is no reason to believe that Miers's nomination resulted from the president's careful consultation with people capable of such judgments. If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers's name probably would not have appeared in any of the 10,000 places on those lists.

CHARLES KRAUTHAMMER: There are 1,084,504 lawyers in the United States. What distinguishes Harriet Miers from any of them, other than her connection with the president? To have selected her, when conservative jurisprudence has J. Harvie Wilkinson, Michael Luttig, Michael McConnell and at least a dozen others on a bench deeper than that of the New York Yankees, is scandalous. It will be argued that this criticism is elitist. But this is not about the Ivy League. The issue is not the venue of Miers's constitutional scholarship, experience and engagement. The issue is their nonexistence.

** You can read these articles in their entirety in SPECIAL ARTICLES below.

Conclusions

I predict that Harriet Miers will be confirmed by the Senate, but I hope she will not.  Certainly she is a fine person, a good lawyer and a faithful public servant.  But she is not the most qualified nominee by a long-shot.  President Bush should withdraw her nomination, but that is not likely.  He wants us to trust him.

Because Miss Miers is an accomplished lawyer, she is not likely to be tripped-up at the Senate hearings.  She is not likely to say anything outlandish.  John Roberts just showed her how to get through the hearings without revealing her convictions on the sensitive issues.

In this case, the Democrats are actually our best hope.  Some no doubt believe that Bush is pulling a “rope-a-dope” here.  Specifically, that Miers must be a staunch conservative - otherwise Bush wouldn’t have put her up.  This is certainly a possibility – that Bush knows how she will vote – and we should trust him as he suggests.  

But again, we don’t know, and she is not the most qualified nominee by a long-shot.  Let’s hope a lot of senators think that way and vote against her. 

Ideally, she would not even make it out of the Judiciary Committee. But with Harry Reid singing her praises, the odds of that happening are very low.

Finally, assuming Miers is confirmed and the Supreme Court is full again, it will not be long before we see how they vote on some sensitive issues.  In November, the Supreme Court will hear an abortion case in which it will have to rule whether New Hampshire’s parental notification law is unconstitutional.  Also, President Bush has formally asked the Supreme Court to reconsider partial birth abortion.  The Court is expected to rule on that case as early as next spring.  Obviously, we will know a lot more about John Roberts and Harriet Miers when we see their votes.

Will the real George W. Bush please stand up?  Unfortunately, he just did.  At the very least, he should not have put conservatives in this position.  At the worst, we get another David Souter.

Very best regards,

Gary D. Halbert

SPECIAL ARTICLES

Peggy Noonan: What was President Bush thinking?
http://www.opinionjournal.com/columnists/pnoonan/?id=110007363

George Will: Withdraw This Nomination.
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468_pf.html

Bill Kristol: Disappointed, Depressed & Demoralized.
http://www.weeklystandard.com/Content/Public/Articles/000/000/006/166quhvd.asp

Charles Krauthammer: Withdraw This Nominee.
http://www.washingtonpost.com/wp-dyn/content/article/2005/10/06/AR2005100601468_pf.html


Forecasts & Trends E-Letter is published by ProFutures, Inc. Gary D. Halbert is the president and CEO of ProFutures, Inc. and is the editor of this publication. Information contained herein is taken from sources believed to be reliable but cannot be guaranteed as to its accuracy. Opinions and recommendations herein generally reflect the judgement of Gary D. Halbert, Mike Posey (or another named author) and may change at any time without written notice. Market opinions contained herein are intended as general observations and are not intended as specific investment advice. Readers are urged to check with their investment counselors before making any investment decisions. This electronic newsletter does not constitute an offer of sale of any securities. Gary D. Halbert, ProFutures, Inc., and its affiliated companies, its officers, directors and/or employees may or may not have investments in markets or programs mentioned herein. Past results are not necessarily indicative of future results. Reprinting for family or friends is allowed with proper credit. However, republishing (written or electronically) in its entirety or through the use of extensive quotes is prohibited without prior written consent.

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