George W. Bush, it is supposed, has a secret.
It is not classified national security information, But whatever its substance, the President evidently found it so persuasive he decided to risk the Supreme Court on it.
The secret is when and how—if ever—a middle-aged Harriet Miers made the long philosophical journey all the way from being an Al Gore contributor to being a constitutionalist conservative of such unshakable conviction that she merits lifelong appointment to a sharply divided Supreme Court by a President who promised he would name justices in the mold of Clarence Thomas and Antonin Scalia.
Many voters supported Bush on the strength of this promise alone. So, did he keep it or break it when he named his former personal attorney and current White House counsel to replace Justice Sandra Day O’Connor?
The public record does not come close to demonstrating that Miers is a Scalia-Thomas constitutionalist. Some of it, in fact, points to the opposite conclusion.
In an October 4 press conference Bush said he picked Miers because of her philosophical constancy. “I know her well enough to be able to say that she’s not going to change; that 20 years from now she’ll be the same person, with the same philosophy that she is today,” he said.
But if Miers is now a committed constitutionalist, she was not one 17 years ago.
In early 1988, she contributed $1,000 to the Democratic presidential primary campaign of then-Sen. Al Gore. Later that year, five days before voters would decide whether then-Vice President George H.W. Bush or then-Massachusetts Gov. Michael Dukakis would be the next President, she contributed $1,000 to the Democratic National Committee.
The Supreme Court was a hot issue in that campaign, as the senior Bush branded Dukakis a “card-carrying member of the ACLU.” Dukakis said abortion was “one of the reasons why we don’t want George Bush and Dan Quayle appointing new justices to the Supreme Court.”
The very next year, according the Dallas Morning News, Harriet Miers incongruously made a $150 contribution to the Texans for Life Coalition.
But Miers’ 1988 investment in the DNC cannot be chalked up as a youthful indiscretion. She was an aspiring, 43-year-old Democratic politician who would soon be elected to the Dallas City Council. Furthermore, In her one term there, she definitely did not embrace fiscal conservatism, but instead voted to endorse a 7% increase in property taxes.
It has been suggested that Miers’ effort as Texas Bar Association president to get the American Bar Association to hold a referendum on whether the ABA should be neutral on abortion or pro-abortion is evidence that she will be a good justice. But Darrell Jordan, who preceded Miers as Texas Bar president, who supported ABA neutrality on abortion, and who, according to the New York Times, supports “abortion rights,” told the Times it is “unfair” to interpret Miers’s work for the referendum as an indication of her views on abortion. “I know Harriett as well as anyone could,” he said, “and I’d have a hard time telling you what her beliefs are on that subject.”
At his press conference, Bush was asked how he would convince conservatives that Miers is another Scalia or Thomas. He did not talk about what she believes, but instead said: “First, she is a woman of enormous accomplishment.” “She understands the law. She’s got a keen mind. She will not legislate from the bench. I also remind them that I think it’s important to bring somebody from outside the judicial system, somebody that hasn’t been on the bench. And, therefore, there’s not a lot of opinions for people to look at.”
All but two of these things could be said about Hillary Clinton. Sen. Clinton, a Yale Law graduate, also is a woman of enormous accomplishment, who understands the law, has a keen mind, and has never been a judge. Of course, it cannot be said of Sen. Clinton that she would not legislate from the bench. But that is a conclusion we can reasonably draw precisely because Clinton’s opinions—unlike those of Harriet Miers—are not a secret.
In the coming years, the court is likely to decide fundamental questions about American society. The protection due to property rights, the sanctity of marriage, and the sanctity of life itself, will all taken up, perhaps decisively, for the last time in generations. Even if John Roberts turns out to be as great a constitutionalist as William Rehnquist, the court will still need two more such justices—including whoever replaces O’Connor—just to muster a 5-to-4 majority that respects the Constitution as written.
If President Bush and Harriet Miers have solid evidence that she has become a Scalia-Thomas constitutionalist, they should make it public and defend it proudly in the Senate. Otherwise, conservative senators, who have their own duty to the Constitution and the future of our country, would be on solid ground asking the President to send up instead one of the many other excellent potential nominees, who do have a constitutionalist record and the gumption to defend it.