President Bush's "Trust Me" pick

Posted: Oct 05, 2005 12:00 AM

"The wisdom of those who drafted our Constitution and conceived our nation as functioning with three strong and independent branches have proven truly remarkable. It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution." So said Harriet Miers, President Bush's nominee for associate justice of the Supreme Court.

 Who is Harriet Miers? President Bush's White House counsel, the woman who could fill Justice Sandra Day O'Connor's seat, is a completely unknown quantity. Except for the fact that Miers has helped out Meals on Wheels, we know nothing about her. The usual suspects have already declared their opposition and support for Miers, but that tells us little about her judicial philosophy.

 Just what is her judicial philosophy? No one seems to know. Beyond the assurances of President Bush ("she will strictly interpret our Constitution and laws") and Vice President Dick Cheney ("I'm confident that she has a conservative judicial philosophy"), there is literally no record of her views. 

 So why did President Bush pick Miers? For two very simple reasons. First, she's a woman. Apparently, President Bush thought he could score some political points by nominating a woman to fill a woman's seat. This was obviously a high priority for him; during his nomination speech, Bush repeatedly referenced Miers' accomplishments in "breaking down barriers to women that remain … a generation after President Reagan appointed Justice O'Connor to the Supreme Court." While choosing Miers as an affirmative action candidate exhibits the soft bigotry of low expectations he so derides, President Bush likely sees the Miers choice as a political coup.

 Second, and far more importantly, President Bush considers Miers part of his inner circle. Miers, 60, is older than typical nominees. And there were plenty of better-qualified women, both experientially and philosophically, available for the O'Connor seat. Judge Janice Rogers Brown (D.C. Circuit) would have filled two diversity quotas, as well as mirroring Justice Clarence Thomas on the bench. Judge Edith Jones (Fifth Circuit) would have provided a solid pick with a paper trail; the same holds true for Judge Karen Williams (Fourth Circuit). Yet Bush went outside the judiciary to choose Miers, whom he has known for "more than a decade." 
 The bottom line is this: Miers is a disappointing pick. There is no indication of what she thinks of the legal reasoning in key cases like Roe, Raich and Kelo. Does she believe in a constitutional "right to privacy"? We have no idea. Does she believe the Constitution mandates that the Supreme Court re-examine legislative choices under the ridiculous notion of "substantive due process"? We have no idea. Does she believe that the federal government is one of enumerated powers, despite the incredible expansion of the commerce power? We have no idea. 

 But Miers is no more questionable than Chief Justice Roberts was. In fact, the two are more similar than dissimilar. Both had no paper trail. While Roberts worked pro bono on Romer v. Evans, the original case protecting homosexuality under the equal protection clause of the 14th Amendment, Miers submitted a report to the American Bar Association supporting "the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child." On some issues, Miers is probably to the right of Roberts: As head of the Texas State Bar, Miers attempted to change the official American Bar Association pro-choice stance on abortion. If her jurisprudence holds true to her apparent legal view on abortion, she is probably more of an anti-Roe vote than Roberts will be.

 Conservatives made a mistake on Roberts, and they are paying for it in Miers. Conservatives hoped that Roberts would be the "moderate" pick, that President Bush would "go for it" in filling O'Connor's seat. Instead, President Bush has outflanked conservatives, using their support for Roberts as an excuse to choose a Roberts clone -- this time, female. He's looking to fly under the radar and hoping that conservatives will allow him another "trust me" pick. Does he deserve our trust on Harriet Miers? For those who supported Roberts, it will be difficult to say no.