October 14, 2005,
When President Bush nominated Harriet Miers to the Supreme Court, we called it a missed opportunity. The ensuing debate has confirmed that judgment. For all its fury, a consensus was reached early on that point. Leaving aside the president and his employees, even Miersís fiercest defenders allow that she was not their top pick or even their tenth.
There is very little evidence that Harriet Miers is a judicial conservative, and there are some warnings that she is not. Miers is said rarely to have raised her voice in the Bush administrationís internal policy debates, but it is known that she was a strong defender of racial preferences when they were being challenged before the Supreme Court. In the end, her influence helped sway the Bush administration to file a brief defending those preferences, which, in turn, helped sway the Court to uphold them.
Miersís own career as a lawyer shows a strong tendency to identify with local elites and establishments, to go along with prevailing ideas, and to avoid doing anything that might cause unpleasantness or rock the boat. These are useful personality traits, but they are not the traits of a Scalia or a Thomas the kind of justice this president led conservatives to expect.
Miersís record on the Dallas City Council has been described as that of someone who was neither liberal nor conservative. She rose at the American Bar Association, an organization deeply institutionally hostile to conservatives. At the White House she showed herself intensely protective of the ABA, opposing efforts to end its privileged role vetting judges a privilege that the ABA had used to promote liberal judges and downgrade conservatives ones. She donated money to the Al Gore campaign when her colleagues asked her to, and helped establish an endowed lecture series at Southern Methodist University that brought feminist icons like Gloria Steinem and Susan Faludi to campus. She made a point of refusing any affiliation with the Federalist Society.
Miersís supporters argue that her conservatism is reflected in the judicial picking she allegedly did for President Bush. Most of this work was, however, done before she became counsel. They say that she is pro-life. (Her campaign to get the ABA to stay neutral on abortion lends some credence to that avowal, and qualifies, but does not erase, the impression that she flees controversy.) They say that she has a strong evangelical faith. But neither being pro-life or an evangelical is a reliable guide to what kind of jurisprudence she would produce, even on Roe, let alone on other issues. Indeed, the fact that her supporters have had to resort to such weak defenses and, worse, to pleasant generalities about her kindness to her colleagues and name-calling about her criticsí alleged sexism is perhaps the most distressing evidence that no stronger arguments are available on behalf of this nomination.
We are left with only stray clues to Miersís value system. Unlike John Roberts, or for that matter Ruth Bader Ginsburg, Stephen Breyer, or Clarence Thomas, Miers comes to the highest Court in the land as practically unknown quality, a gamble for incredibly high stakes.
Then there is the related issue of qualification. She has had real accomplishments. But it speaks volumes that the president cited her service on a lottery commission as a reason to put her on the Supreme Court. Some of the presidentís supporters have argued that excellence does not matter in a Supreme Court nominee that really any one of 50,000 lawyers could adequately do the job. This is unconvincing on its face. But if a refutation is needed, consider the career of Harry Blackmun. Here was a judge described even by his admiring biographer Linda Greenhouse as intellectually insecure. Like Miers, he too was devoted to local establishments: the Mayo clinic in his case rather than the ABA. Sure he was a loyal Republican; but almost as soon as he arrived on the Court, he was transformed.
a Blackmun, her record strongly
suggests she will be an OíConnor
a split-the-difference judge.”
So, we have reason to fear, will be the case with Miers. And even if she does not become a Blackmun, her record strongly suggests she will be an OíConnor a split-the-difference judge. As one of her former colleagues has said of her, Miersís office was the ďplace where the action stopped and the hand-wringing began.Ē If she follows that course, we will be left with a Court that retains immense and inappropriate lawmaking power but refuses to make clear laws. The rule of law is based on the making of arguments and the giving of reasons, not on sentiment or group loyalty which is the basis on which Miersís defenders want us to support her.
ďThe president trusts her,Ē is not a good enough argument. The president has trusted a lot of people, some of whom have worked out fine, others less so. To which category will Harriet Miers belong? It is possible that the confirmation hearings will shed light on that question. But we doubt it, given the ease with which nominees can sidestep searching questions.
What, then, should be done? Some conservatives have called on the president to withdraw her nomination, and a few have urged senators to vote against her. If the president withdrew the nomination, we believe that he would seek a replacement who could unite conservatives as he no doubt expected Miers to unite them. But that nominee would be tarnished, perhaps fatally, by the suspicion that the president was forced to pander to the Right. The president, moreover, surely does not want to risk looking less than strong and steadfast. The prudent course is for Miers to withdraw her own nomination in the interests of the president she loyally serves. The president could then start over. Both he and his party would probably benefit from having the clear fight over the direction of the courts that only a new nominee would allow. But for that to happen, some conservative senators are going to have to send a diplomatic message to the White House.
And conservatives and the White House will have to restore their working relationship. Some hard and ill-considered words have been said on both sides, but it is time for all involved to follow their interests, instead of their resentments.