Special Report

The Unoriginalist

Sandra Day O'Connor could have delivered Miers's bromide-laden speeches, though surely she would have given them a little more sophistical polish.

By 10.27.05

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"I can't see this nomination going forward," says a Judiciary Committee staffer to TAS. "The hearings would be so ugly." What will sink Harriet Miers, he predicts, is the "evidence that she can't write and think."

Fresh evidence of this appeared in the Washington Post on Wednesday. The Post reported on a speech Miers delivered before the Executive Women of Dallas in the 1990s in which she made a vague stab at addressing popular controversies. The speech's reliance on stale and mindless bromides is stunning. Sandra Day O'Connor could have given the speech, though surely she would have given it a little more sophistical polish.

Most stunning, particularly for those of us crudely obsessed with letting unborn children live, is Miers's use of that absurd and destructive liberal cliche that society can't legislate religion or morality. Here's how the line reads on the printed speech: "Legislating religion or morality we gave up on a long time ago. Remembering that fact appears to offer the most effective solutions to these problems once the easier cases are disposed of."

Another striking moment of babble in the speech is: "Abortion clinic protestors have become synonymous with terrorists and the courts have been the refuge for the besieged." Praying pro-lifers are synonymous with terrorists? Says who? This sounds like some sort of terribly ill-conceived pandering to her "mainstream" audience, as does this perplexing construction: "The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion."

The speech is peppered with PC inanity and uncritical acceptance of liberal enthusiasms: "a society whose wealth is diversity"; "The justice system is under scrutiny for the Rodney King episodes" (Why? Because craven pols were questioning the judgment of a jury in a trial they were not privy to); taxes needed to be raised to address a "loss of people resources" from failing public schools; "We still have all-white juries trying cases which significantly impact the rights of minorities" (So the capacity of a jury to be fair depends on its racial composition?); "one justice sometimes for minorities, one for whites"; there is a "sense that glass ceilings still exist, that sexual harassment continues..."

This is the cast of mind of an originalist? The mind of a lawyer who acutely understands the meaning of the words of the Constitution as defined at the moment of its enactment, and who will uphold them no matter how politically incorrect that makes her appear? This strains credulity. The speech even raises the question of whether Miers has read the Constitution. According to her printed speech, she told the assembled lawyers that justice is "protected" by the "Pledge of Allegiance."

President Bush has managed to turn a Supreme Court nomination into a cruel version of The Apprentice, expecting Harriet Miers, who is commendable at many jobs, to take up a wholly new one for which she is obviously miscast, a job which requires becoming an originalist in a matter of weeks and throws her into scholarly tasks she's never performed before. Amateur hour has gone much too far when barely literate Democratic Senators, still sore from the schooling John Roberts gave them, are giving her a second round of homework and puzzling over her admiration for the jurisprudence of "Warren Burger."

What passes for thought on the Supreme Court is quite frightening. So perhaps it is true that Miers can't lower it. But the goal was to end O'Connor's jurisprudence by PC cliche, not extend it. On affirmative action, the area in which Miers has shown her hand the most, her thinking, or lack of thinking, is the same as O'Connor's, with the possible difference that Miers won't offer such imaginatively illogical proposals as phasing out affirmative action in 25 years.

Miers, whom Bush promises won't change even as he praises her as an agent of change, has always made sure to keep her trailblazing to well-worn mainstream paths. Unless she has undergone a remarkable infusion of grace since that speech before the Executive Women of Dallas, she is bound to stay on them. This is a nominee who considered mere membership in the Federalist Society to be risky. This is a nominee who not very long ago considered "legislating religion or morality" to be passe. And she is going to overturn Roe v. Wade, decades of liberal jurisprudence, and uphold the Constitution of dead white males?

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About the Author
George Neumayr, a contributing editor to The American Spectator, is co-author, with Phyllis Schlafly, of the new book, No Higher Power: Obama's War on Religious Freedom.