The problem is not that Harriet Miers stands outside the elite legal establishment but that she is very much part of it. The Bush administration, searching here and there for a marketing point to quiet skeptical conservatives, has been touting her simple, populist virtues. But her substantial involvement in the American Bar Association suggests she’s spent far more time in the company of judicial activists than in the company of unfashionable originalists whose understanding of the Constitution corresponds to the common sense of ordinary Americans.
Would that Miers did lack credentials. Unfortunately, she possesses the very conformist credentials the legal elite responsible for decades of destructive jurisprudence find most reassuring. There is very little evidence yet — apart from her procedural opposition to the ABA’s abortion stance — of a nonconformist streak in her. To overturn the unconstitutional growths metastatizing under stare decisis requires Scalia-like nonconformity. Is Miers capable of bucking the ABA culture that contributed to forming her?
Yes, she opposed the ABA’s abortion plank. But what about all the ABA stances she didn’t oppose, and in some cases facilitated? Were Antonin Scalia head of the ABA’s rules and calendar committee in 1998 like Miers, would he have submitted for discussion on behalf of his colleagues motions endorsing homosexual adoption and the formation of an International Criminal Court? The White House has said that this doesn’t prove agreement with her colleagues. Okay, but it does prove cooperation with them. And is working-well-with-peers a quality desirable in a potential justice with whom 4 to 5 of her peers are sure to behave like judicial activists?
That she was “just going along with what others wanted,” both on this matter and possibly in her donations to Democrats like Al Gore and Lloyd Bentsen, undermines the White House’s confident prediction that she will show impervious, changeless leadership on the court for decades to come.
Her resume suggests that she has spent far more time preoccupied with, and engaged by, process/consensus than principle. That aptitude no doubt made her an effective managing partner in Dallas. But how will that translate into courageous dissents? Much of President Bush’s praise of her is beside-the-point, because it doesn’t bear on the two qualities essential in a strict constructionist: a deep and lucid understanding of the Constitution and the resolute character to apply that knowledge in the face of withering scorn from the legal establishment.
Bush didn’t need to find an intellectual as defined by the Harvard law faculty. But he did need to find someone like Scalia who embodies the best of populism and intellectual life — that is, an intellectual who hasn’t lost his intellect, or the will to use that intellect in defense of truths contained in the Constitution that the elite are determined to erase.
Bush found the advice of Democratic senators that he look outside the “judicial monastery” very persuasive. Why? The advice just reveals the nakedly political mindset of the Democrats: that they are looking not for judges with monkish independence but pols susceptible to fads and currents. The superficial, PC decision-making surrounding Miers’s selection — Laura Bush wanted a woman on the court, Bush was impressed by Miers’s status as a female “pioneer” in his home state and so forth — just adds to the impression that this choice will not dislodge Sandra Day O’Connor’s influence on the court but reinforce it.
The Chronicle of Higher Education reported on Thursday that Miers “has played a key role in exposing college students to some unmistakably liberal ideas.” She helped start in the late 1990s at Southern Methodist University’s law school “an endowed lecture series in women’s studies named for Louise B. Raggio,” a Texas lawyer who advanced women’s interests in divorce and property cases. Gloria Steinem offered the series’ inaugural address. She was followed by a Who’s Who of feminists, from Susan Faludi to Patricia Schroeder to Ann Richards to Gwen Ifill.
No, Miers isn’t an outsider scorned by the elite, as the White House conveniently argues; she is a member of the elite. If she hews to a brave, nonconformist path on the court — upholding a constitution written by dead white males — her friends at the ABA and in SMU’s women’s studies program will surely be surprised.
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