The problem is not that Harriet Miers stands outside the elite
legal establishment but that she is very much part of it. The Bush
administration, searching here and there for a marketing point to
quiet skeptical conservatives, has been touting her simple,
populist virtues. But her substantial involvement in the American
Bar Association suggests she’s spent far more time in the company
of judicial activists than in the company of unfashionable
originalists whose understanding of the Constitution corresponds to
the common sense of ordinary Americans.
Would that Miers did lack credentials. Unfortunately, she
possesses the very conformist credentials the legal elite
responsible for decades of destructive jurisprudence find most
reassuring. There is very little evidence yet — apart from her
procedural opposition to the ABA’s abortion stance — of a
nonconformist streak in her. To overturn the unconstitutional
growths metastatizing under stare decisis requires
Scalia-like nonconformity. Is Miers capable of bucking the ABA
culture that contributed to forming her?
Yes, she opposed the ABA’s abortion plank. But what about all
the ABA stances she didn’t oppose, and in some cases facilitated?
Were Antonin Scalia head of the ABA’s rules and calendar committee
in 1998 like Miers, would he have submitted for discussion on
behalf of his colleagues motions endorsing homosexual adoption and
the formation of an International Criminal Court? The White House
has said that this doesn’t prove agreement with her colleagues.
Okay, but it does prove cooperation with them. And is
working-well-with-peers a quality desirable in a potential justice
with whom 4 to 5 of her peers are sure to behave like judicial
activists?
That she was “just going along with what others wanted,” both on
this matter and possibly in her donations to Democrats like Al Gore
and Lloyd Bentsen, undermines the White House’s confident
prediction that she will show impervious, changeless leadership on
the court for decades to come.
Her resume suggests that she has spent far more time preoccupied
with, and engaged by, process/consensus than principle. That
aptitude no doubt made her an effective managing partner in Dallas.
But how will that translate into courageous dissents? Much of
President Bush’s praise of her is beside-the-point, because it
doesn’t bear on the two qualities essential in a strict
constructionist: a deep and lucid understanding of the Constitution
and the resolute character to apply that knowledge in the face of
withering scorn from the legal establishment.
Bush didn’t need to find an intellectual as defined by the
Harvard law faculty. But he did need to find someone like Scalia
who embodies the best of populism and intellectual life — that is,
an intellectual who hasn’t lost his intellect, or the will to use
that intellect in defense of truths contained in the Constitution
that the elite are determined to erase.
Bush found the advice of Democratic senators that he look
outside the “judicial monastery” very persuasive. Why? The advice
just reveals the nakedly political mindset of the Democrats: that
they are looking not for judges with monkish independence but pols
susceptible to fads and currents. The superficial, PC
decision-making surrounding Miers’s selection — Laura Bush wanted
a woman on the court, Bush was impressed by Miers’s status as a
female “pioneer” in his home state and so forth — just adds to the
impression that this choice will not dislodge Sandra Day O’Connor’s
influence on the court but reinforce it.
The Chronicle of Higher Education reported on Thursday
that Miers “has played a key role in exposing college students to
some unmistakably liberal ideas.” She helped start in the late
1990s at Southern Methodist University’s law school “an endowed
lecture series in women’s studies named for Louise B. Raggio,” a
Texas lawyer who advanced women’s interests in divorce and property
cases. Gloria Steinem offered the series’ inaugural address. She
was followed by a Who’s Who of feminists, from Susan Faludi to
Patricia Schroeder to Ann Richards to Gwen Ifill.
No, Miers isn’t an outsider scorned by the elite, as the White
House conveniently argues; she is a member of the elite. If she
hews to a brave, nonconformist path on the court — upholding a
constitution written by dead white males — her friends at the ABA
and in SMU’s women’s studies program will surely be surprised.
