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Oct. 24, 2005

A supreme mistake

by Alex Hyder, Online Op-Ed Editor
George W. Bush has always billed himself as a "uniter, not a divider." Now, at long last, the President has lived up to his promise: the nomination of Harriet Miers to the Supreme Court has united secularist liberals and hard-line conservatives — against his decision.

Moderate liberals put up with Bush's aggressive foreign policy in the hopes that he would nominate a judge whose decisions were based on legal, rather than religious, grounding. Conservatives supported Bush, in spite of his stratospheric spending and refusal to veto pork-laden bills, hoping that he would nominate a judge with a conservative legal philosophy — one that advocates the strict interpretation of the Constitution. In one fell swoop, Bush has managed to alienate both constituencies, effectively biting the hand that fed him and his party during the tumultuous elections of 2004.

Imagine, for a minute, that you and a few of your friends have a softball team together. Let's say that your team gets lucky and is slated to play the team across town for the county championship. The week before the game, your first baseman — let's call her Sandra — gives you a call, saying she won't be able to play. Luckily, you work as a publicist for MLB and are friends with many of the league's superstars, all of whom would be eager to take Sandra's place. Your team is abuzz: who will you call to play on your team? Will it be Albert Pujols? Derrek Lee? David Ortiz? You have a bevy of heavy hitters at your disposal, so imagine the team's astonishment when you show up the day of the championship with — get ready for it — some friend of yours you knew from an old job. Few people have ever heard of her, let alone seen her at bat, but she says she can play the game as good as anyone.

In the beginning of October, Bush was left with a similar gap to fill. Instead of a first baseman, Bush needed an Associate Justice of the Supreme Court to replace Sandra Day O'Connor. Instead of affecting the outcome of a softball tournament and determining which team will carry home a glistening trophy, the outcome of his decision will affect the rulings made by the highest court in the land for years to come.

Instead of a field of major-leaguers, he could have chosen from any of a number of qualified lawyers and judges, each of whom has clear views on the Constitution and is wholly qualified to fulfill the duties of the position. And instead of a relative unknown you met at work, Bush nominated, well, a relative unknown he met at work, whose greatest accomplishment as a lawyer is probably her reform of the Texas Lottery. Miers has never argued a case before the Supreme Court or even submitted a brief that was used in one. As a matter of fact, she has never served as a judge in any capacity. Why, then, did Bush decide she was qualified to sit on the Supreme Court?

Bush's choice is, indeed, baffling. Perhaps it was Miers's evangelical background that appealed to the commander in chief. Perhaps it was her loyalty to him, both in AustinHouston and in Washington. Perhaps it was her "Texas charm," whatever that is. But in all likelihood, Miers' nomination was the product of appeasement. Bush, thinking that his conservative base would rather see a weak nominee than a filibuster fight, caved in to the minority leader Harry Reid's threat to filibuster nominees Democrats felt were "too conservative" and appointed a moderate. In doing so, he found himself with more than he bargained for — rather than being acclaimed on both sides of the aisle, Miers has been blasted by Democrats and Republicans alike.

The shame in this stems from the fact that Bush could have nominated any of a host of qualified candidates. Alberto Gonzales, the attorney general who has held several high-level judicial posts, is certainly qualified to sit on the Supreme Court. So is Fourth Circuit Appellate Judge J. Michael Luttig, who worked for the Justice Department under Bush's father and who worked with Justices Souter and Thomas in preparation for their respective confirmation hearings.

Neither Gonzales nor Luttig has been afraid to take the tough positions on hot issues that conservatives ask of their nominees, and both appear to be guided primarily by a judicial, not religious, philosophy. In fact, while serving as a judge on the Texas Supreme Court, Gonzales once voted to allow a 17-year-old to have an abortion without parental notification — not because of some abstract notion of right or wrong, but simply because the law allowed her to do so. Gonzales went on to say that siding against the ruling would constitute "an unconscionable act of judicial activism."

Appointing a justice with such a legal philosophy would bring the integrity that conservatives demand to the Court while satisfying the left's craving for the complete separation of church and state. Instead, Bush has appointed his crony, a judge whose ideological positions are a gamble.

Even if Bush felt he had to nominate a woman to the Court in order to maintain its diversity, he could have chosen from any of countless female judges. Priscilla Owen, for instance, would have been a perfect candidate to fill O'Connor's preponderous shoes. Like Miers, Owen was a Bush appointee in both Houston and Washington, having served on the Supreme Court of Texas and on the Fifth Circuit Court. Unlike Miers, Owen has years of judicial experience under her belt, an established view on interpreting the Constitution, and a visible and consistent conservative record that, after coming to light during the Democrat-led filibusters of 2003, has already made her popular among Bush's Republican base. Owen, or a number of judges like her, would have filled O'Connor's spot admirably.

Instead, conservatives now fear that, if confirmed, Bush's nominee — "their" nominee — will not be able to keep up with shrewd liberal legal minds like Ruth Bader Ginsberg and Stephen Breyer. Conservatives would rather see Bush appoint a justice with a solid legal background, even if making such an appointment would mean facing a filibuster, than see him compromise and appoint a justice whose inexperience would likely make her the laughingstock of the Supreme Court.

What most irks conservatives about Miers, however, is her apparent lack of a conservative judicial philosophy — or, for that matter, any judicial philosophy. Ever since Roe v. Wade, right-wingers have complained about "judicial activism" and judges who "legislate from the bench." And rightly so. In recent years, the American legal system has overstepped its bounds, becoming an instrument of binding decision on matters, such as abortion and school prayer, that are the constitutional province of those branches of government whose members are elected, not appointed. It is the job of Congress and the President to represent public opinion, reads Republican legal doctrine; the Supreme Court's sole duty lies in standing for the law and its meaning.

Miers, however, has not demonstrated that she espouses this originalist position on interpreting Constitution, despite the fact that it is the stand taken by many conservative legal scholars. As a matter of fact, she has yet to indicate that she holds any views, other than those of her evangelical church. If it is her religious views, not her legal ones, that guide her decisions, then conservative legal scholars have every reason to oppose her, because Miers will be little more than another activist judge, albeit one with conservative leanings. As the saying goes, "hard cases make bad law," and hard cases decided by judges willing to step outside the constraints of the Constitution can only make for the continued erosion of the separation of powers.

However, as so little is known about her Constitutional views, most conservatives consider her a coin flip: on one hand, Miers, if confirmed, could take part in rampant judicial activism. On the other hand, she could indeed hold originalist views on the Constitution. Rather than going with a sure thing and nominating a candidate like Gonzales, Luddig or Owen, the President has bet on a long shot and his bird in hand in favor of two, no pun intended, in the bush.

Unlike the aftermath of Katrina and Rita, this mess can be cleaned up rather quickly. First, Bush should withdraw his nomination of Miers. Unfortunately, this seems unlikely. Although Bush surely realizes that the Miers nomination has resulted in a wave of public backlash, he will continue to lobby for her because, as blogger Rogers Cadenhead said, "The president's so stubborn that were he captain of the Titanic, he would have run the ship into a second iceberg to prove he meant to hit the first one."

In fact, changing his mind on such a major appointment would be unthinkable for a President who continually (and, some would say, justifiably) ridiculed his opponent for "flip-flopping" in the months leading up to the 2004 election. America's only recourse, then, is to demand that Miers withdraw herself from consideration. If she cares about the state of Constitutional law in the United States half as much as Bush insists she does, she will do so post haste.

George W. Bush had the opportunity to bring new vitality to the Supreme Court by nominating a young justice with conservative views on the Constitution. Instead, he chose his friend, and alienated the entire country in the process. Well done, Dubya. Well done.



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  • old fart 05 on October 24, 2005 at 1:10 PM
    Wow, nicely done, Alex. I am thoroughly impressed by your analysis and reaonsing - you have the markings of a political analyst. Impressive.
  • Mark Chou (View Email) on October 24, 2005 at 1:58 PM
    Fantastic article, thank you.
  • Sarah Peitzmeier (View Email) on October 24, 2005 at 4:57 PM
    "Even if Bush felt he had to nominate a woman to the Court in order to maintain its diversity..."
    So a president should feel forced, as if Bush "had to," before nominating a woman? Forgive my eyebrows shooting up to my hairline, but it sounds as if Bush must be backed into an undesirable situation before nominating a woman to appease the PC patrol. Not that the court is rather diverse to begin with, in gender or race, or haven't you seen a picture of the justices lately?
    I agree with an editorial that I read in the Washington Post. The author (a woman, if it matters) also did not feel Miers was qualified, and said she would like to see the day when posts are filled neither in spite of, nor because of, gender.

    On another note, everyone has a philosophy of life. Just because Miers is a Christian - "evangelical" or not - doesn't mean much. So are a lot of people. I'm guessing most of the people on the bench are.
  • Anonymous on October 24, 2005 at 5:19 PM
    I like the article, but the softball reference seems a bit too detailed. You do not need to explain every single parallel between the softball scenario and Bush's dilema.
  • Angela Cummings (View Email) on October 24, 2005 at 6:42 PM
    Oh, Hyder... you special boy. Your opinions and writing style really are quite like no other.
  • Condoleeza Janice Rogers Brown on October 24, 2005 at 7:25 PM
    How about some black females
  • Jeff Lautenberger (View Email) on October 24, 2005 at 7:55 PM
    Excellent article, Alex.
  • Anarchist on October 24, 2005 at 8:34 PM
    Ms. Peitzmeier, your guess is WRONG!

    Sorry.
  • Anarchist on October 24, 2005 at 8:35 PM
    Hyder, this editorial is incredible. The opening line is one of the cheapest shots I have ever read - and I LOVE IT!

    What happened to the SCO editorials? THEY ARE SO FRIGGIN GOOD THIS YEAR!!!!1111!!!eleven!!
  • Anonymous on October 24, 2005 at 9:31 PM
    Outstanding article. I agree totally.
  • . on October 24, 2005 at 11:00 PM
    yeah that post article was by tina brown..."you've come a long way ladies" basically being able to pick out someone that is not qualified rather than trying to achieve equality? (other women were better qualified than miers.)
  • cbcfsd on October 25, 2005 at 3:37 PM
    i love the softball analogy
  • condi rice on October 25, 2005 at 10:10 PM
    i agree totally
  • Andy Horn (View Email) on October 26, 2005 at 2:28 PM
    “Not ‘A Supreme Mistake’”
    By Andy Horn

    The following events have occurred:
    - John Roberts, extreme conservative is nominated to the Supreme Court as an Associate Justice to replace Associate Justice Sandra Day O’Connor.
    - Rumors circulated, saying that Chief Justice William Rehnquist will retire due to his deteriorating health, are disproved when the Chief Justice, himself, says that he has no such plan.
    - Rehnquist dies.
    - Roberts is nominated again, this time as the new Chief Justice. It seems that it was always the intention to eventually nominate Roberts as Chief Justice.
    - Harriet Miers is nominated, surprisingly to the public and herself, as the Associate Justice to replace O’Connor. Miers seems to be a moderate, compared with Roberts. She is of little experience. She is criticized by both major political parties.
    - Roberts takes his first day presiding over the Supreme Court.

    Predictions:
    - Miers is retracted as a nominee, either by means of herself or the president. Otherwise, she will be turned down by the Senate.
    - Bush nominates an extreme conservative to replace Sandra Day O’Connor.

    Mark my words: Miers will not make it to the Bench.
    On the day after Rehnquist died I saw my father and discussed the events with him. “The Republicans must be extremely upset over this,” he said. “You see, the Republicans were profusely attempting to keep him on the Bench so that they did not have two Right-Wing Crazies up for nomination to the Supreme Court at the same time, for that would give the Democrats an excuse to filibuster one or both of them.”
    My father was correct; the Republicans did not want to put up two Justices that they would like as their top two choices at the same time. I, for a long time, have been saying to some people that Miers was simply the result of someone saying to Bush, “I don’t care who you pick. Why don’t you just pick someone who you know and works here? We can’t pick another Roberts because that nominee really would be filibustered.” I was assuming that my father’s statement was correct.
    After reading Alex Hyder’s opinion piece in Silver Chips Online on Miers, I realized that my father was still correct; I had just drawn the wrong conclusion. Miers was chosen very carefully as a logical choice that the president may make, though a person who had to be turned down by the Senate. Then they could nominate a real conservative, as they would like. This keeps their idea that a “Right-Wing Crazy” could replace both seats on the Bench and they both would not be up for conformation at the same time.
    Miers, in effect, was no “Supreme Mistake” as Hyder suggests, but a strategy to put someone on the Bench that is more conforming to the beliefs of the extreme Right.
  • Dissapointed with Hyder on October 26, 2005 at 4:59 PM
    Hyder, you dissapoint me.
  • RU on October 30, 2005 at 10:53 AM
    Tell me Andy, HOW is John Roberts an "extreme conservative"? God, the extreme, radical liberal culture at Blair sickens me. He's a moderate who's the paragon of judicial restraint, and that's all he is. He's an objectivist. He's incredibly smart.

    And do you think that Bush planned on Rehnquist dying (you sort of imply it)?

    In spite of your skewed and irrational views of Roberts, your ideas about Miers seem plausible, if not likely.
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