Judiciary

Who Harriet Miers Is Not

Was it for this, Mr. President?  Was it for this that so many Americans made so many sacrifices, worked so hard, gave up family time, made life-changing decisions, took pains?  Was it for this that so many prepared the way for so many years?  Was it for this we gave you and 55 senators a mandate?  For a Supreme Court nomination as unprincipled in its nature as this?

President Bush has made his nomination, but it is not our nomination—not yet, if ever.  The President consulted 80 or more senators as the Democrats insisted, but he failed to listen carefully to the people who elected him.  Still, the President we love deserves the benefit of a doubt, his nominee deserves the benefit of hearings, and every nominee deserves an up or down vote. 

Perhaps Harriet Miers, if confirmed, will salvage this President’s legacy in her first few decisions.  But this nomination will never stop being objectionable—a lowering of standards.  We are right to voice our opposition now, and hesitate to applaud, or we will risk that if the President gets another vacancy to fill, he will make this mistake again.  Conservatives must also warn the President’s men not to dig the hole of this nomination deeper with divisive and ham-fisted defenses.

Apparently, when we objected to Atty. Gen. Al Gonzales, the President did not understand why.  The opposition was not about who Gonzales was.  And now it is not about who Miers is. It is about who she is not.  She is not one of the score of brilliant and tested, but now discarded, potential nominees (mostly women, almost all non-Ivy League educated) that the President might have nominated.  She is not among the many fine and temperate minds who in the course of their adult lives have thrown themselves, full body, into the maelstrom of public life.

Rather, Miers has timidly dipped her toes, first in this pond, then in that trickle.  She gave to this cause that we favor, but why did she give only once?  She sought to make the American Bar Association neutral on abortion.  She was one of thousands.  But she was not one of the thousands, however, who resigned in protest when they chose to advocate abortion rights, among them some of the rising stars of the bar at the time.

We are told that she is pro-life, but some remember the conference call with Justice Anthony Kennedy’s priest who told conservatives that he was pro-life.  What good are such assurances of the heart as compared to the tested professions of the mind?  That she is reputedly pro-life and two spanking new constitutional law books will still not make her, even if she is the most brilliant and wonderful person, qualified for the Supreme Court—of this country.  Moreover, I have no doubt that Chief Justice John Roberts is pro-life, but neither he nor I know if he will overturn Roe v. Wade.

Still, we are reminded that 40 other Supreme Court justices had never first served as a judge.  True, and that includes most of the Warren Court that wrought so much harm to the Constitution.  Surely, this is an argument intended to comfort the least thoughtful.  We are reminded that John Marshall, the great chief justice, had never been a judge.  If Miers had fought in the American Revolution, had associated with James Madison and George Washington, and been chosen by them to be the most impassioned and learned advocate for the new American Constitution’s ratification, had she served in the earliest House of Representatives, or as secretary of state for John Adams, I would think then that Miers was as qualified as Marshall. 

In his recent hearings, Roberts said that to be called a results-oriented judge is the worst insult you could give a jurist.  And yet, this is the only reason conservatives are being given for trusting the President’s selection of Miers for the Supreme Court.  That she will rule the way we want.  Fighting his father’s demons, the President tells us that what matters is that he knows Miers and that she will not change, an allusion to Justice David Souter.  But Souter’s problem is not that he changed, or that the President who nominated him did not know his heart. It is that he too was unqualified and untested to withstand populist winds.

I want a judge who will rule as we want, but not at the cost of the very thing that separates us from banana republics, from the principles that make this country blessed and great.  In this country, the Supreme Court’s legitimacy does not rest on black robes and a high bench.  It rests on the people’s expectation that the best and most temperate minds will reach the right decisions the right way.  It rests on knowing that those who serve on the high court are qualified for their particular task.  This nomination will not add to that legitimacy.

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