Bush Bets Court on Untested Aide

They are angry, dismayed and disheartened, but, more importantly, concerned for the fate of the Supreme Court.

The conservative reaction against President Bush’s nomination of untested White House Counsel Harriet Miers to the U.S. Supreme Court was so universal and intense that it erupted at each of the two separate meetings of activist leaders held Wednesday by Americans for Tax Reform President Grover Norquist and Free Congress Foundation Chairman Paul Weyrich.

At the Norquist meeting, conservatives targeted their ire at former Republican National Chairman Ed Gillespie, who is working with the White House on Supreme Court nominations. At the Weyrich meeting, Republican National Chairman Ken Mehlman and Tim Goeglein, White House liaison to the conservative community, found themselves in the crosshairs.

Jury’s Out

Weyrich lectured Mehlman that he was finished with trusting Republican Presidents on Supreme Court nominations. He had already done five “trust-mes,” Weyrich said.

At Norquist’s conclave, when Gillespie referred to Miers as “our” nominee, American Conservative Union Chairman David Keene retorted: “She’s the President’s nominee. She’s not ours.”

News of what happened at the usually confidential meetings percolated around Washington, D.C., that afternoon and ended up on the front page of Thursday’s Washington Post and New York Times.

Beyond the meetings, leaders across the entire spectrum of the right, from columnist George Will to former presidential candidate Pat Buchanan to Weekly Standard Editor Bill Kristol, were sharply critical of the Miers nomination. Roger Pilon of the libertarian Cato Institute told the Christian Science Monitor: “The choice is a reflection of Bush’s weakness. He is squandering this opportunity on a nominee who has no record that remotely equips her for the Supreme Court.” The conservative Washington Times ran at the top of its Commentary section a piece by former Reagan Justice Department official Bruce Fein calling on Miers to withdraw her nomination. The Family Research Council, recalling that Bush had said he would name justices in the mold of Antonin Scalia and Clarence Thomas, withheld its endorsement for now, saying, “our lack of knowledge about Harriet Miers, and the absence of a record on the bench, give us insufficient information from which to assess whether or not she is indeed in that mold.” Phyllis Schlafly’s Eagle Forum also declined to endorse Miers for now.

The conservative reaction to the Miers nomination has been so fierce because the consequences for America are so great if Bush ends up placing even one bad nominee on a Supreme Court that had a 6-to-3 liberal majority before Chief Justice William Rehnquist died and John Roberts took his place. In recent decades, the liberal activist court has expanded the power of Congress (theoretically under the Commerce Clause) to regulate activities within states and communities. It has rewritten the Takings Clause, which requires government to provide just compensation when it takes private property for public purposes, to mean government may take property from one private owner and give it to another. It has rewritten the Establishment Clause, which prevents the establishment of an official government religion, to prevent voluntary prayer in schools and to remove the Ten Commandments from courthouses. It has distorted the 14th Amendment’s call for “equal protection” of the law to mean that state governments can use skin color as a factor in determining who gets into state-operated professional schools. It has declared abortion, partial-birth abortion and same-sex sodomy constitutional rights.

If the court’s liberal majority is maintained, it may soon rewrite the meaning of marriage.

Because of the court’s ability to trump any ameliorative action taken directly by voters through state initiatives, or indirectly through state legislatures or Congress, conservatives have long focused on putting a conservative Republican President in the White House and a healthy Republican majority in the Senate so that the Republican Party can carry through on its commitment to put a constitutionalist majority on the court. Conservatives came through on their end: They helped elect Bush twice. They helped elect a 55-seat Republican Senate.

Now Bush has gambled it all by nominating Miers.

Miers is by all reports a gracious and intelligent person. But before she began working for George W. Bush’s first gubernatorial campaign, she was a Democratic politician, serving on the Dallas City Council, where she voted to raise property taxes. Virtually her entire relationship with the Republican Party has been through the person of Bush, and for much of that time working for Bush as an attorney, hired to advocate his views.

All through the Roberts confirmation process we were told that the views of Roberts’ law clients could not be imputed to him. Now we are expected to extrapolate Miers’ never-stated views from those of the political leader for whom she worked as a lawyer. And we can expect that attorney-client or executive privilege will be invoked for every memo Miers ever wrote and for every conversation she ever had in that context.

Miers has almost no independent public record of defending conservative or constitutionalist causes or advocating conservative or constitutionalist views. Unlike Roberts, she was not a distinguished appellate court lawyer who argued multiple cases before the Supreme Court. Unlike Roberts, she did not work in the Reagan and first Bush Administrations.

Indeed, in the 1988 campaign, when the senior President Bush was running to succeed Ronald Reagan, Miers contributed the maximum $1,000 to then-Sen. Al Gore’s presidential primary campaign and then $1,000 to a Democratic National Committee that was trying to elect a Massachusetts liberal, Michael Dukakis, to the presidency.

The chief argument for Miers put forward so far by the President’s surrogates is that she is a good Christian. To be sure, that is a good thing. But the implication that Miers will interpret the Constitution correctly because of it is not ultimately persuasive. Miers now has the burden of making her own case to conservatives and to the country by explaining her views, and how she arrived at them, when she testifies in the Senate Judiciary Committee.

In the meantime, the jury is out.


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