President Bush promises that Harriet Miers will not change, yet
he continues to lionize her as an agent of change. Last week she
was a “pioneer.” This week she is a “trailblazer.” So she is an
activist after all? No, no she will eschew activism on the court,
says the White House. She understands, says Bush, that “the role of
a judge is to interpret the text of the Constitution and statutes
as written, not as he or she might wish they were written.” Then he
proceeds to tell people about her “heart,” how she’s helped the
“poor and underprivileged,” as if compassion is a governing
principle of constitutional interpretation.
Bush similarly gets his wires crossed when he expresses his
certainty that Miers will vote the way he wants. How would he know?
Didn’t he proudly tell the press last week that he has no “litmus
tests,” that he has never broached with her the subject of how she
would vote on the great issues of the day?
For no discernibly serious reason, Republican presidents take
great pride in knowing as little as possible about their nominees’
judicial philosophy. It is long overdue for some forthright
Republican to campaign on explicit litmus tests. Democrats don’t
let their enemies determine their criteria for the court. Why
should Republicans blindfold themselves as they select their
nominees while Democrats baldly ask their nominees, “You’ll uphold
Roe v. Wade, right?”
But this raises another issue: Let’s say Bush and Miers did
confer and agree on how to vote on Roe v. Wade and the
like. Would that guarantee good votes? No. Bush’s understanding of
the term, “strict constructionist,” is hazy and at this point it
could mean upholding politically correct decisions that have
calcified under stare decisis. Last week’s press
conference showed that the media had Bush right where they wanted
him, so deferential to the pro-abortion status quo that he wouldn’t
dare say that he wanted Roe v. Wade overturned. (Also,
Nathan Hecht, the Texas judge who is vouching for Miers at the
White House’s request, seems to go out of his way to point out that
Miers’ pro-life views don’t necessarily mean that she will rule
abortion unconstitutional.)
Pat Leahy, appearing on This Week With George
Stephanopoulos, confirmed that Harriet Miers during a meeting
with him called “Warren Burger” one of her favorite justices. Leahy
said that the Washington Post’s story of the conversation
had been bungled; Leahy didn’t remember her first saying “Warren”
before clarifying that she meant “Warren Burger,” not Earl Warren.
Not that that matters much. It is still a gaffe. In fact, it should
lead people to wonder which is actually the more damaging answer:
Earl Warren or Warren Burger? Roe v. Wade would probably
have been a bridge too far even for Earl Warren. But not for
Burger.
The White House has been telling people that Miers’s admiration
for Burger isn’t significant. She just admires the tidy way he ran
the court. Whatever. Burger is a good illustration of what happens
when Republican presidents don’t bother to probe their nominees’
judicial philosophy carefully or even care if they have one.
Richard Nixon, in naming Burger to the court, had said he wanted a
“strict constuctionist” and “practitioner of judicial restraint.”
Burger then upheld every judgment of the Warren Court and added
some terrible ones of his own, including rulings in defense of
busing, abortion, and a twisted understanding of the First
Amendment (which simultaneously weakened it for the speech the
Founding Fathers intended to protect — religious expression — and
strengthened it for the speech they didn’t — obscenity).
Meanwhile, liberals, sensing that the Miers nomination needs a
little propping up, are running generally positive stories about
her. The New Yorker’s Hendrick Hertzberg couldn’t help
himself and noted with disapproval that she has served the
“interests of corporate clients,” but the Washington Post
praised her last Saturday for her strong and independent
convictions. Midway through its praiseworthy story, however, the
Post quoted a colleague of hers on the Dallas City Council
who suggested her convictions weren’t that strong at all.
“We spent about 1,200 hours together and had in excess of 6,000
agenda items, and I never knew where Harriet was going to be on any
of those items until she cast her vote,” former council colleague
Jim Buerger said. “I wouldn’t consider her a liberal, a moderate or
a conservative, and I can’t honestly think of any cause she
championed.”
And then this from the story: “Elsewhere in Texas, conservatives
on councils were voting to add language to city charters stating
that life begins at conception. But once elected, Miers steered
clear of abortion.”
Apparently she’s blazed trails. Just none of them conservative.
If she turns out like Warren Burger, we will know what Bush meant
by “pioneer.”
