A supreme mistake

Oct. 24, 2005, midnight | By Alex Hyder | 18 years, 7 months ago

"I went to the polls, and all I got was this lousy nominee"

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.

Alex Hyder. Hyder, as he is affectionately (or, as is often the case, not-so affectionately) known, is thoroughly enthused about his position on SCO. A junior in Blair's Magnet Program, he is too lazy to write a more extensive bio but nonetheless finds the energy to write … More »

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