The movement on Miers

Jennifer Biddison
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Posted: Oct 14, 2005 12:05 AM

By now we’ve all heard the voices of leading conservative commentators – Rush Limbaugh, Ann Coulter, Manny Miranda, George Will, among others – rise up in protest against President Bush’s nomination of Harriet E. Miers to the Supreme Court. What has been overlooked, however, are the thoughtful voices of the conservative movement’s most respected think tanks.

Since little is known about Miers, many organizations have adopted a “wait-and-see” approach. Still, a surprising number of scholars are boldly speaking out against a nomination that they believe betrays the core principles of the conservative movement.

The first complaint is that Miers is far from the “best qualified person in the United States,” as President Bush argued in his October 4 press conference.  Conservatives are very familiar with many of the other candidates once said to be on the president’s short list, and Miers’s corporate law background simply doesn’t match up with the constitutional qualifications of well-respected judges like Janice Rogers Brown.

Randy Barnett, a Cato Institute senior fellow and Boston University law professor noted that “nothing in Harriet Miers’s professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people.”  
 
Continuing, Barnett described the Supreme Court as the “big leagues of the legal profession,” and “Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.”

Ronald J. Pestritto, a Claremont Institute fellow and University of Dallas professor, echoes Barnett’s sentiments.  “Miers’ background offers no demonstrated knowledge of or commitment to the original principles of the Constitution,” he writes.  “The Supreme Court is no place for on-the-job training in the principles of the founding or constitutional interpretation.”

Pestritto and Barnett also share another strong opinion: that Bush’s nomination of Miers smacks of good ol’ fashioned cronyism.  They reference Alexander Hamilton’s wisdom in Federalist No. 76:

To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President … He would be both ashamed and afraid to bring forward… candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him...

As a close friend and trusted advisor of President Bush, Miers might see a bit of herself in Hamilton’s statement.  “The point here, of course,” writes Pestritto, “is not that the president should be prevented from nominating his allies or associates, but rather that one’s friendship with the president should not be the primary qualification one has for office… [T]he substantial weight of the evidence of [Miers’s] capacity to be a justice – that is, the key government positions she has held – are all the fruits of her continuing relationship with the president.”

If Pestritto and Barnett are right about this being a case of favoritism, President Bush won’t be the only one who suffers for his choice; the American people will also be victims.  Says Barnett: “Cronyism is bad not only because it leads to less qualified judges, but also because we want a judiciary with independence from the executive branch.”  What a smack in the face such a scenario would be for conservatives and libertarians who have put in countless hours fighting judicial activism – only to have it handed to them by a Republican president.

This brings up another strong argument against Miers: that her nomination is a step backwards for conservatives and libertarians.  “President Bush may have asked conservatives to trust him one too many times,” writes Andrew E. Busch, an adjunct fellow of the Ashbrook Center and a Claremont McKenna College professor.  “On issues from the No Child Left Behind Act to prescription drugs, Bush has pulled his party along with policies many found distasteful by promising big political payoffs which have yet to materialize and (conservatives suspect) never will. With Miers, they are being asked to make the biggest gamble yet.”

Busch notes that Bush has done a disservice to conservatives by nominating a stealth candidate instead of defending the need for a strong constitutionalist.  “Even when discussing judicial appointments, Bush has asserted the principles but rarely made the case for them,” he says. “Though some of Reagan’s Supreme Court appointments may well be worse from a conservative standpoint than Miers will turn out to be, he also spent eight years of his presidency making the case for constitutionalism day in and day out. The GOP majority is built on the foundation laid by that effort twenty years ago. Conservatives anxiously ask where Bush’s disinclination to fight this fight will leave them twenty years from now.”

Busch suggests unhappy conservatives focus on “coalescing behind a candidate in 2008 who will govern with a greater determination to shape national discourse and a firmer grasp of the policy and rhetorical imperatives of constitutionalism – and not just when a Supreme Court vacancy appears.”

The Clare Boothe Luce Policy Institute is also disappointed by the Miers nomination.  They issued the following statement: “In short, all those men and women who have spent their careers fighting an activist judiciary have now encountered another glass ceiling: the paper trail.  What does the president’s selection of Miers say to them?  Thanks for your efforts to preserve and uphold the Constitution, but we do not have the political will to defend you or your views.”

Conservative Ak’Bar Shabazz agrees, suggesting that “this nomination appears to be an attempt to fill a ‘minority’ gap instead of a conservative one.  Conservatives deserved a better nominee for their loyalty to the President.”

Blogger Ryan S. Walters urges conservatives to pay less attention to the Supreme Court and focus instead on electing more conservatives: “Congress has enormous power over the federal courts though they do lack the will to use it.”

But in the meantime, Mac Johnson writes in Human Events that “not compromising on Miers could be a great fight for us…. Defeating Miers -- if she does not show some staunch principle in the confirmation hearing -- will simply result in the President's having to name a second candidate.… Psychologically, a Miers defeat would make future Republican office-holders much more wary of stiffing conservatives and thinking that no harm can come of it.”