It has been suggested that Miers' effort as Texas Bar Association president to get the American Bar Association to hold a referendum on whether it should be neutral on abortion or pro-abortion is evidence that she will be a good justice. But Darrell Jordan, who preceded Miers as Texas Bar president, who supported ABA neutrality on abortion and who, according to The New York Times, supports "abortion rights," told the Times it is "unfair" to interpret Miers' work for the referendum as an indication of her views on abortion. "I know Harriett as well as anyone could," he said, "and I'd have a hard time telling you what her beliefs are on that subject."
At his press conference, Bush was asked how he would convince conservatives that Miers is another Scalia or Thomas. "First, she is a woman of enormous accomplishment," he said. "She understands the law. She's got a keen mind. She will not legislate from the bench. I also remind them that I think it's important to bring somebody from outside the judicial system, somebody that hasn't been on the bench. And, therefore, there's not a lot of opinions for people to look at."
Some of these things could be said about Hillary Clinton -- except, of course, that she would not legislate from the bench, a conclusion we can draw precisely because Clinton's opinions are not a secret.
In the coming years, the court is likely to decide fundamental questions about American society. The protection due to property rights, the sanctity of marriage and the sanctity of life itself will all be in the dock -- perhaps, decisively, for the last time in generations. Even if John Roberts turns out to be as great a constitutionalist as William Rehnquist, the court will still need two more such justices -- including whoever replaces O'Connor -- just to muster a 5-4 majority that respects the Constitution as written.
If President Bush and Harriet Miers have solid evidence that she has become a Scalia-Thomas constitutionalist, they should make it public and defend it proudly in the Senate. Otherwise, conservative senators, who have their own duty to the Constitution and the future of our country, would be on solid ground asking the president to send up instead one of the many other excellent potential nominees who does have a constitutionalist record and the gumption to defend it.