She’s no David Souter

Horace Cooper
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Posted: Oct 12, 2005 12:05 AM

“Read my lips:  no new taxes.”  These six words ultimately led to what conservatives have come to see as one of the worst betrayals in the annals of political history.  As Dick Armey—who as it happens was the Texas congressman who had led the rebellion over President Bush's tax hike—might say, “the President couldn't have been this wrong by accident."
 
Let’s look back at 1990.  Even before the tax hike the President’s conservative base was restless.  A row over funding for the National Endowment for the Arts and signs of a sagging economy had created a political environment perfect for the creation of Monday morning quarterbacks.  Even in the the aftermath of a 90% approval rating over his handling of the Gulf War, critics on the right were already charging that the President had cut and run too soon before finishing off Saddam Hussein. 
 
But in 1990 it was too early to tell that a greater breach of trust would come into being—David Souter, Supreme Court Justice.  While there were a few writers at the time who questioned Souter’s record, when the decision was initially announced most stories read like the Washington Times article reporting that Souter’s selection "would help rehabilitate Mr. Bush's tarnished image among some supporters on the right…" and was "likely to solidify the high court's fragile conservative bloc."  Others news organs such as Human Events ran a story proclaiming “Conservative Legal Experts Impressed with Souter’s Credentials,” and speculated Souter would “significantly advance the conservative thrust of the High Court."

In fact, the only real opposition came from the far left.  Edward Kennedy called Souter’s record on civil rights “particularly troubling;” labeled some of his arguments “reactionary;” and said his past comments regarding Roe v. Wade were “alarming.”
 
As Yogi Berra might opine, “It’s Déjà vu all over again.”  Today President Bush faces criticism about a spiraling budget deficit and complaints about his handling of the economy.  Critics attack his prosecution of the war in Iraq and he’s facing open criticism about his nominee to the Supreme Court before she’s heard the first oral argument.
 
It is with some irony that it must be noted that it now seems that it’s the Iraq war which is popular with the GOP base and apparently it is primarily Senate Democrats who are prominently cheering the President’s Supreme Court nominee.  But even if GOP activists are as opposed to Harriet Miers as they were excited about Souter 15 years ago, history is likely to show the prevailing opinion to be wrong again.   
 
Like Miss Miers, David Souter was a “little-known conservative” lawyer without much of a paper trail, as the Washington Post noted at the time.  And like Miss Miers, Judge Souter was not administered a “litmus test” or asked by the president about cases or specific legal matters. 
 
But there were differences too.  David Souter, a furious collector of rare books, had the typical Ivy League pedigree thought by some necessary for entrance to the hallowed halls of the Supreme Court.  Harriet Miers graduated from a law school in Texas, Southern Methodist University and developed a proficiency with firearms.  Also unlike Harriet Miers, Judge Souter didn’t know the President.  In fact they were only introduced a few days before the nomination.  President Bush has had twelve years to become intimately familiar with his nominee’s personal views. 

Frankly one should be able to look at the differences between these two nominations and better understand why President Bush believes Harriet Miers is an excellent nominee who will bring a fresh, much-needed perspective to the bench while affirming conservative ideals. 
 
George Bush senior’s nomination of David Souter reinforced a lesson his son as President has learned well:  don’t quickly bow to political pressure from your political enemies and don’t assign important decisions to others when it’s your own legacy at stake.  President Bush chose Harriet Miers because he knows her skills and talents.  As it happens, she’s one of President Bush’s most trusted advisors.  And she too has had time to thoroughly understand his views and expectations of a judge in a way few candidates for the Supreme Court ever can.
 
Also, unlike the obscure bachelor from New Hampshire, there are plenty of indications of Harriet Mier’s tenacity and commitment to a conservative jurisprudence.  One of her former partner reminds us that Harriet Miers “is one of those people that the practice of law and all things associated with that really has been her life."  Take a look at her fight against the American Bar Association for formally adopting a pro-Roe v. Wade position.  Although she ultimately lost, she rightly understood that this endorsement was just another example of how radicals were distorting the law for their own narrow purposes.
 
In contrast, while Souter had served as a federal judge and as a Supreme Court Justice in New Hampshire before that, his rulings on property rights in Kelo v. Connecticut and gays in Texas v. Lawrence among others proves to all but the unteachable that not all wisdom comes from being a Rhodes Scholar or a Harvard man. 
 
Like Rehnquist, Powell, and White, justices who have served in the last quarter century, Harriet Miers has never been a judge.  Yet these judges were able to serve with distinction and arguably they did so because they didn’t come from the cloistered halls of academia or the judiciary. 

Harriet Miers brings different perspectives to the table and a view like few others because of her varied past experiences.  And a real appreciation for diversity should include strengths associated with living in the real world. Concerns like running a business and meeting a payroll, understanding the perspectives of elected officials and the attitude and the outlook of main street Americans is arguably much more important than diversity defined primarily by gender and race.

Harriet Miers will bring to the Supreme Court her knowledge of the critical issues facing our country today and fully informed view of the political branches on these issues.  We need a judge on the Supreme Court who brings these new perspectives to the table, and together with her stellar accomplishments in her legal career it is obvious that she is a well qualified candidate. 
 
Perhaps Miss Miers fails the Washington test because as Dick Armey might say, “she’s a workhorse, not a show horse.”  There’s a good reason this woman has consistently been recognized by fellow lawyers as being among the top lawyers in the country; she’s clearly a leader in both the private sector and the public sector.  She is one of the first to arrive and last to leave the White House and she’ll bring this same work ethic to the court.  And most of all, she’s no David Souter.
 
Horace Cooper is an assistant professor of law at George Mason University and teaches a course on “The Modern Supreme Court Confirmation Process.”