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.”