U.S. President George W. Bush, seeking to rebound from a failed Supreme Court nomination, chose conservative appeals court judge Samuel Alito Jr. for the seat and set up what may be a bitter battle with Senate Democrats.

Alito, 55, has a markedly different resume than that of White House Counsel Harriet Miers, whose nomination Bush withdrew last week amid opposition from conservatives. Alito is a former prosecutor and Reagan administration official with 15 years of experience on the 3rd U.S. Circuit Court of Appeals in Newark, New Jersey, and a developed record of judicial conservatism. ~Bloomberg

In choosing Judge Alito, Mr. Bush has managed to regain some ground lost over the past weeks with the Miers debacle, and he has once again surprised critics such as myself by choosing one of the better judges on the bench today as Associate Justice. Along with his choice of Bernanke for the Fed, the nomination of Alito seems to mark a recovery of some minimal political judgement at the White House after two months of complete confusion. Once again, Mr. Bush has regained the initiative against an incompetent opposition, and he has dared the Democrats to employ their extaordinary plan of filibuster. Even if the Democrats could pull enough members of Sen. McCain’s little band to their side to defeat the nominee without resorting to a filibuster, Mr. Bush would have a highly visible election issue that would motivate the people whom he has, in fact, slighted with the Miers withdrawal.

In a sense, the failure of Alito’s nomination from the obstruction of the opposition might benefit Bush politically more than if Alito was confirmed with the same ease that the Senate confirmed Judge Roberts. As potentially damaging or even disastrous 2006 midterm elections approach, the GOP needs something that will mobilise voters with something close to the same intensity as what I would call Mr. Bush’s 2002 “Khaki Election.” Without low, but intensely Republican turnout, all signs point to Democratic victory in 2006–provided that they can manage to appear as something other than the ship of fools that they are. The failure of Alito’s nomination might serve as a symbol of leftist intransigence that the RNC could marshal in support of its candidates. While the direction of the judiciary is not a high priority for most voters, it is the priority for increasingly estranged evangelicals, who saw (however foolishly or unrealistically) in Miers their representative and who have taken her abandonment rather poorly. If Alito’s nomination failed, these voters would be highly mobilised to make one last push to get their sort of nominee. It would provide the culture war mentality that helped, despite his own best efforts to ignore or disown state marriage amendments, get Mr. Bush over the top in 2004. Should Alito be confirmed, this would be an important success Mr. Bush could tout, but it would be nowhere near as politically useful as failure.

But what about Harriet Miers and the supposed revolt on the part of “the base”? Conventional press accounts have it that “conservatives” (whatever it supposed to be meant by this) opposed Harriet Miers, and the impression has been that the more conservative someone was the more strongly he would have opposed her nomination. Not exactly. Secular conservatives and neocons opposed her precisely because she was personally religious and insufficiently highbrow–the failed attempt to browbeat the Senate Republicans with accusations of “elitism” (as well as “sexism”) revealed that the administration knew what the source of opposition to her was, even if they were extremely clumsy and stupid in how they responded. Of course, they were joined by thinking conservatives of all stripes who found the nomination to be a joke (and a bad one at that). Part of this was a result of embarrassment on the part of thinking conservatives, when they realised that any one of them had done more serious thinking on constitutional law than had Ms. Miers, and another part was frustration with such a politically inept pick, simply adding one more mark of incompetence to an administration riddled with it. In a strange convergence, pundits throughout the “conservative” universe, broadly defined, found themselves in agreement that Miers had been a bad choice. This is just about the only issue on which Pat Buchanan and Charles Krauthammer have agreed in the last 30 years.

Evangelical leaders and, to the extent that they were following events, ordinary evangelicals were, as far as I was able to gather, quite pleased with the selection of Miers. Some liberal columnists somewhat reasonably perceived in her initial statements shades of Robert Bork in her open endorsement of strict construction (even though Judge Bork himself was bewildered by the choice and would probably have been unamused by any comparisons), and to the extent that ordinary conservatives in “the base” saw this in Ms. Miers, lack of documentation notwithstanding, they were willing to give Mr. Bush more of the benefit of the doubt than the Washington and New York sets were. Ms. Miers was not a good choice, if we are talking in terms of merit, but what she was meant to symbolise to Republican evangelicals was a surprising departure from Mr. Bush’s usual reliance on the party and Washington establishments. It was also an odd burst of populist appeal on a domestic issue for an administration that has saved most of the tawdry demagoguery for its wars.

I should reiterate that the Miers choice was quite poor, because she seemed to have dedicated as much time in her career to constitutional theory as Mr. Bush has. However, one thing we should all be clear on is that it was not backlash from the “far right” or evangelical Christians that brought her down, but instead it was mostly a backlash from established Republican activists and pundits.

Loose talk about what “the base” wanted or didn’t like was just so much posturing for the most part, as it often is–”the base,” by which I mean the (at least nominally) religious evangelical core 20-25% of the country that forms the main voting bloc of the GOP, would only have been displeased with Ms. Miers’ nomination because of the incompetence of its handling (which was considerable), not because of Ms. Miers herself. 35 years of GOP populism, however disingenuous and manipulative, and at least 15 years of cultivating an anti-elitist rhetoric among conservatives have resulted in a pervasive anti-elitism and anti-intellectualism among Republican voters, such that the Middle American “base” might well prefer someone nominated to the Court who did not necessarily have extensive experience in the judicial establishment or contacts in the Washington world. They might have well preferred someone whom they recognised as one of their own rather than trusting in their Northeastern leadership to provide someone. This same sort of rather rude and stupid populism, which made Mr. Bush’s Iraq war politics successful for a time, is beginning to clash with the centers of real power in the GOP.

If the goal was to put up an evangelical candidate (it is noteworthy that the Court will be, with Alito, majority Catholic for the first time in American history), choosing Miers was not likely to make the effort successful. Not to put too fine a point on it, but most of Mr. Bush’s Christian voters are not Catholic, and they have now seen his last two Court appointments go to Catholics. Evangelicals may like and respect Scalia and Thomas, but I get the impression that they cannot really identify with them to the same extent that Catholics can, and they were probably hoping to have “one of their own” on the Court. To the extent that evangelicals genuinely believe that Mr. Bush is “one of them,” however foolish this may be, they probably expected nothing less than to get an evangelical Justice. Viewed in this way, the flare-up over Miers may portend larger problems for the GOP’s alliance of evangelicals, traditional Catholics and secular nationalists. But in the short to medium term, the Alito selection will prove to be a winner for Mr. Bush almost regardless of how the confirmation hearings go.

There is also the matter that the average GOP voter, if I have any sense about these things anymore, finds fault with judicial activism not simply because it is a violation of what judges ought to be doing, but also because they do not accept the legitimacy of a privileged caste of lawyers who interpret the Constitution as if it were a mysterious and multivalent document. Contrary to the opinions of many lawyers and constitutional theorists, the Second Amendment, for instance, is not a difficult and abstruse article to interpret. Contrary to modern jurisprudence, the commerce clause cannot be all things to all people. Those who require elaborate judicial philosophies to make sense of these fairly straightforward sections of the Constitution are the same kinds of people who perceive “penumbras” in the Constitution and judge according to “evolving standards of decency.”

I suspect that these Middle American voters believe, quite rightly, that abdicating the interpretation of the Constitution to this special caste is an abandonment of self-government as well as a surrender to the assumption that constitutional law is somehow so esoteric and difficult that ordinary citizens are not capable of determining what the Constitution sets down. The semi-educated, barbarian masses of modern America may be unable to do so, because they have never learned how to think critically nor do they know much of anything of our English constitutional traditions, but the judicial activist assumption is still a flawed and dangerous one. In this sense, Ms. Miers’ lack of an elaborated judicial philosophy probably seemed much less worrisome to her supporters, not simply because they have been trained to despise intellectual inquiry and reflection (exacerbated in recent years by the cult of instinct created by GOP pundits to justify Mr. Bush’s own intellectual vapidity) but because for them strict constructionism is a position that does not need elaborate justification or explication–it is a claim that the meaning of legal texts, particularly the text of our fundamental law, is immediately obvious to anyone with a basic education.