Special Report

A Miers Constitutional

Should she be stopped?

By 10.14.05

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The more we learn about Harriet Miers, the less there is to like. David Brooks wrote yesterday that in her "President's Opinion" column that Miers wrote for the Texas Bar Journal, "the quality of thought and writing doesn't even rise to the level of pedestrian."

Of course, we have to make allowances for the fact that the first job of any association president is to not offend her members. Still, nothing excuses sentences like this:

''More and more, the intractable problems in our society have one answer: broad-based intolerance of unacceptable conditions and a commitment by many to fix problems.''

Or this: ''We must end collective acceptance of inappropriate conduct and increase education in professionalism.''

Or this: ''When consensus of diverse leadership can be achieved on issues of importance, the greatest impact can be achieved.''

Okay, so Miers can't write. On the Supreme Court she'd have clerks to help her with that. But what about her actual ideas?

Last week I noted a couple of encouraging signs on that front. But since then, one big red flag has shown up.

There have been several reports suggesting that Miers played a role in the White House's decision, in Grutter v. Bollinger, to argue in favor of a public university's authority to make race-based judgments in admissions, as long as the preference system isn't too explicit (as it was found to be in the companion case, Gratz v. Bollinger). The signs suggest that on this issue, she'd be at least as unreliable as Sandra Day O'Connor.

The White House yesterday ruled out withdrawing Miers's name from consideration. So, can this nomination be stopped? Maybe. A critical mass of Democrats might conclude that it is better to support Miers than to deal President Bush a defeat and risk facing a more reliably-conservative nominee. But barring that, a GOP revolt can certainly sink the nomination. Twenty-seven Republican Senators have expressed doubts about Miers, and aides to six of the ten Republican Senators on the Judiciary Committee have anonymously trashed the Miers pick.

So, if she can be stopped, should she be? The strongest argument in Miers favor is the argument from the principle that any President deserves wide deference to his judicial picks. TAS editor-in-chief Bob Tyrrell warns:

Were the Republicans to overthrow the principles they solemnly defended during the Roberts hearing and sink Miers' nomination, the consequence would be anarchy in subsequent Senate hearings,... the partisan Democrats would be justified in voting down any future conservative nominee.

At the Weekly Standard's website, Paul Mirengoff makes the same point, writing that

the politics of the confirmation process tell us that a standard under which conservative senators vote against nominees in, say, the Sandra Day O'Connor mold, is a standard that might well lead non-conservative senators (that is to say a majority) to vote against the next Antonin Scalia.

One problem with this is that the Democrats, whether we like it or not, have already crossed that bridge. If Scalia were nominated today, he would depend on Republican votes for his confirmation. If he were nominated under a future Democratic Senate, the chances are that he'd fail.

Another problem with this pro-Miers argument: When Ruth Bader Ginsburg was confirmed 96-3, most Republican senators deferred to Bill Clinton on the principle that elections have consequences, and Clinton had won an election after pledging to nominate liberal judges. But George W. Bush pledged to nominate conservative judges. Don't Senators owe at least as much deference to Bush's constituents as they do to Bush himself?

If Harriet Miers joins the Court and turns out, as I fear she will, to be weak on a number of constitutional issues and consistently strong only on abortion, it will create new and worrisome political rifts on the Right. When judicial conservatives can no longer be sure that an anti-Roe judge will be fairly strong across the board, they will begin to part ways with their social conservative allies. Before supporting Miers, conservative senators should think carefully about whether loyalty to the President is worth the potentially devastating results for the conservative movement.

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About the Author

John Tabin is a frequent contributor to The American Spectator online.