October 10, 2005
Conservatives shouldn't care about her personal views on issues if they can convince themselves that she agrees with Chief Justice John Roberts's view of a judge's role: that cases should be decided the way an umpire calls balls and strikes, without rooting for either team. But the evidence of Ms. Miers's views on jurisprudence resemble a beach on which someone has walked without leaving any footprints: no court opinions, no law review articles, and no internal memos that President Bush is going to share with the Senate.
It is traditional for nominees to remain silent until their confirmation hearings. But previous nominees, while unable to speak for themselves, have been able to deploy an array of people to speak persuasively on their behalf. In this case, the White House spin team has been pathetic, dismissing much of the criticism of Ms. Miers as "elitism" or even echoing Democratic senators who view it as "sexist." But it was Richard Land , president of the Southern Baptist Convention, who went so far as to paint Ms. Miers as virtually a tool of the man who has been her client for the past decade. "In Texas, we have two important values, courage and loyalty," he told a conference call of conservative leaders last Thursday. "If Harriet Miers didn't rule the way George W. Bush thought she would, he would see that as an act of betrayal and so would she." That is an argument in her favor. It sounds more like a blood oath than a dignified nomination process aimed at finding the most qualified individual possible .
But that ignores the fact that every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:
After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.
Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn't even understand what the court was deciding: "Plainly," he wrote, "the Court today rejects any claim that the Constitution requires abortions on demand."
Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing.
An upcoming biography of Sandra Day O'Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She's a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be. Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.
Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.
Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.
So go ahead, stick your fingers in your ears while shouting "LALALALA!" This president has asked me to "trust him". Well, in this instance, I don't. Color me a skeptic, but I don't wish to spend the next 20 years discussing the Miers' Mistake.
Posted by: triticale at October 11, 2005 08:47 AM (VOGXv)
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