Another Perspective

Miers, Calmly

We might be pleasantly surprised. Maybe.

By 10.4.05

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Let us take a deep breath, and assess Supreme Court nominee Harriet Miers.

Miers would never have been considered if she weren't close to President Bush, but some commentators have been a bit unfair in declaring her totally unqualified. Miers was president of the Dallas Bar Association and then the State Bar of Texas, an accomplished corporate lawyer, and Counsel to the President. Yes, there were a number of short-listed candidates with records much more impressive than that, but her stats are comparable to several lawyers whose first judicial job was on the Supreme Court. Nixon nominee Lewis Powell's most impressive stat was that he'd been American Bar Association president. Byron White earned his nomination by serving as Deputy Attorney General after using his celebrity (he'd been a pro football player) to help John F. Kennedy get elected. Pierce Butler was a former Minnesota state's attorney and respected private-practice lawyer (he counted railroad tycoon James J. Hill among his clients) whose main claim to fame when President Harding nominated him was not his resume but his criticisms of University of Minnesota law professors.

As a non-judge, and a non-academic, Miers is the stealthiest of stealth nominees. Liberal interest groups, who had stacks of talking points on over a dozen nominees, had little to say about Miers when her nomination was announced yesterday. Many conservatives are disappointed at best; quite a few jurists with strong originalist credentials were passed over. Clearly, the White House is more averse to a tough confirmation battle than anyone imagined; Senate Minority Leader Harry Reid reportedly urged the White House to consider her.

What do we know about what kind of justice Harriet Miers will make, if confirmed? Not much, though what we do know is somewhat encouraging.

We know that she's made reference, in a 1992 article for Texas Lawyer to "the right to bear arms" on a list of "precious liberties." "As far as I know," writes Second Amendment scholar Dave Kopel, "you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."

And we know that when she was active in the American Bar Association, she urged that organization to put its official stand in favor of legal abortion up to a vote among members. She donated to Texans for Life (then Texans United for Life) in 1989. She's a member of a conservative evangelical church. The signs point toward "pro-life," and a pro-lifer is unlikely to uphold Roe v. Wade.

The problem is that these are far from the only issues that will face the high court. What limits are there on executive power in wartime? To what extent do constitutional rights extend to non-Americans? Does the Commerce Clause grant the federal government unlimited power over practically any aspect of Americans' lives, as the Court's liberals believe? Or are there real limits to how much Washington can encroach on state and local territory? And what about stare decisis, the principle of leaving judicial precedent settled? Even Clarence Thomas and Antonin Scalia have different approaches there (Thomas is much more willing to reconsider precedent).

We don't know what Harriet Miers thinks about any of those questions; having done almost no work on constitutional law, it's very likely that not even she knows. Given ABA ethical standards that bar pronouncements on issues that judges can expect to rule on, it's unlikely that her confirmation hearings will tell us much. We won't get answers unless she's confirmed and joins the court, which seems likely. In the next term alone, there's a partial-birth abortion case and several federalism cases.

Remember that deep breath? It might not be a bad idea to hold it.

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About the Author

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