Harriet Miers is Conservative Enough

Horace Cooper
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Posted: Oct 05, 2005 7:37 PM

President Bush is in the midst of dealing with something that his critics have longed for throughout his presidency:  a potential crackup of his Republican base.  While the evidence of disarray among Democrats is legion and likely stymies their party’s efforts to reclaim political dominance nationally, most disconcerting for their strategists has been the overwhelming unanimity of rank and file Republicans. 

Whether it’s Pew, Time, CNN or Gallup survey after survey over the last 10 years has revealed a growing level of discontent among Democrats.  Whether it’s because their coalition of liberals, Big Labor, minorities, environmentalists, and feminists is inherently unstable, the discontent has made policy, strategy and communication development far more difficult for the national party.  On the other hand, over the same period a remarkable phenomenon has developed: Republicans have become consistently more united and cohesive in their outlook and expectations of their party to the point where a bedrock of 85% of the party regularly registers approval of the party and their elected leaders.

In the wake of President Bush’s nomination of Harriet Miers as a replacement for Sandra Day O’Connor progressives are hopeful that the GOP will become just as disorganized and divided as the Democrats are.  But as the facts begin to spread among GOP activists these dreams will likely be dashed. 

While it’s true that the Supreme Court’s activist tilt has been a key issue for Republicans, and thus selections are considered to be of critical importance, the party’s base is far more interested in the actual performance of a potential Justice than they are interested in Washington’s cult of personality.  Many GOP’ers would have loved to see Clarence Thomas or Antonin Scalia named as Chief Justice, either individual was someone with a demonstrated track record of conservative jurisprudence.  But that personal preference is more than offset by an appreciation that at the end of the day Chief Justice Roberts will be just as able in that role.

This is also the case with Harriet Miers.  When all is said and done, the face of the Supreme Court Justice won’t be nearly as important as the actual vote on the critical issues coming before the Court.   President Bush recognizes this and that’s why he selected her. 

Yes she’s a talented lawyer who’s been responsible for overseeing a 400 man law firm and held elective office locally and was once the head of the Texas Bar Association.   But because the challenge of limiting judicial excesses is a large one, Harriet Miers has already shown which side she supports and which side she’ll continue to support if she’s given the opportunity to join the Supreme Court.

Under her tenure as White House Counsel she has helped develop the legal strategy for a commonsense conservative legal agenda.  Consider:  For the last 30 years conservatives have complained about the litigation explosion in America.  The fear of crushing liability harms the economy providing huge verdicts to line the pockets of greedy trial lawyers while doing nothing to help consumers.  It was her office that represented and reviewed the Administration’s position on several tort reform measures including class action lawsuit reform, medical malpractice and asbestos liability reform.  

And as an Associate Justice on the Supreme Court she no doubt will bring this needed perspective to the Court.   This perspective is needed particularly among the conservative bloc on the Court which has been heretofore unwilling to place significant restraints on predatory trial lawyers.

Additionally her office has taken responsibility for coordinating the Administration’s policy in prosecuting the War on Terror.  The Supreme Court’s guidance provided in Hamdi v. Rumsfeld and Rasul v. Bush from the perspective of the Administration might best be described as unhelpful.  Here too the Administration can expect that she along with Chief Justice Roberts will recognize the futility of a court of law attempting to oversee the national security needs of the U.S. and return this responsibility to the political branches.

Her entire career gives further insights into what kind of Justice she would be.  In 1993 she was the leader of an unsuccessful effort to change the American Bar Association position on abortion when the ABA decided to embrace abortion rights.   In fact, Federalist Society head, Leonard Leo argues that this is a compelling reason pro-life advocates should be happy with her nomination. 

Also she’s made contributions – albeit modest – to the pro-life Texans for Life Coalition (which would seem a strange thing to do for a group or cause that you oppose) and she opposed repeal of the Texas’ anti-sodomy law when she ran for election as a city council member in Dallas.

Remarkably, it was Miss Miers who personally delivered the news to the president that Justice Sandra Day O'Connor was retiring, and it was Miss Miers who had the responsibility for interviewing potential replacements which lead ultimately to Chief Justice John Roberts' selection. 

If she could be trusted to be conservative enough to do that job, then she’s certainly conservative enough to be a justice on the Supreme Court.   These things and more are pretty obvious to George W. Bush, the man who promised to put conservative judges on the court.  And this is what’s becoming increasingly clear to his Republican base.

Horace Cooper, an assistant professor of law, teaches a course on “the Modern Supreme Court Confirmation Process” at George Mason University School of Law.