Off-Kilter - Harriet Miers, Abortion, and the Supreme Court (Valley News Op-Ed)

While no fan of George Bush or his judicial nominees, I can’t help but wince at Steve Nelson’s Oct. 16 assessment of Supreme Court nominee Harriet Miers. As usual, this nomination was greeted by a torrent of verbiage telling us what a Supreme Court justice “should be.” These criteria, unsurprisingly, change with each nominee and generally reflect the political convictions of the writer. In Nelson’s column, we learn that he doesn’t like Miers, but the arguments say a great deal more about Nelson than they do about Miers.

First, Nelson makes the mistake of patronizing his opponents. He begins by gleefully rubbing his hands over the political storm that greeted Miers’ nomination. Citing the backlash within social conservative circles, Nelson questions how these critics can be so dense, claiming one “needn’t have supernatural powers” to know who Miers is and why she was nominated.

Lacking supernatural powers myself, I come to a completely different conclusion as to who she may be and why she has been forwarded by this administration. I think the Miers nomination speaks volumes about George Bush’s limited room to maneuver and reflects the Republican Party’s increasingly strained coalition.

Controlling both houses of Congress and the White House, the GOP could conceivably ram through another Robert Bork or Antonin Scalia, but has chosen not to. Why? The pundits and media, sniffing fire hydrants, blame Bush’s ham-handed management or simply enjoy the whiff of internal dissension so much they don’t bother digging further. I think the answer is plain to see and the social conservative backlash confirms it. The Republican Party cannot afford to see Roe v. Wade, the landmark ruling on abortion rights, overturned.

Bush knows this, the Republican leadership know this, and now they’re doing back flips to obscure the fact from their social conservative supporters.

The Republican Party is a delicate balance of factions united in their opposition to the social and fiscal policies of the Democrats. With each passing year in power at both ends of Pennsylvania Avenue, it’s becoming more difficult for the Republicans to stake out ground on fiscal matters. Conveniently, the Republicans can continue to stoke partisan outrage and oppose the Democrats’ social policies so long as Roe remains law.

Should a Republican-appointed Supreme Court overturn Roe, all bets are off. The outrage at what social conservatives see as government-sanctioned murder would be transformed to the outrage that libertarians, social liberals and a huge number of non-ideologues would feel at government intrusion into the most intimate, personal matters of conscience. Repudiation of Roe v. Wade by the Supreme Court would be a watershed event dwarfing the groundswell in social conservative circles that greeted the original decision, likely splitting the current Republican coalition irretrievably.

Pollsters from both parties have known this for decades and, oddly enough, Roe is a centerpiece in recruiting for each.

Viewed in this context, Miers is certainly a stealth nominee, but her ideology is meant to escape detection not from the Steve Nelsons of America, but rather from the core social conservative supporters the Republicans will depend upon in 2006 and beyond. Some will dismiss this analysis as fanciful or too clever by half, but they ignore the evidence. Why do Republican court nominees always skirt the Roe controversy at their hearings? None hesitate to discuss Brown v. Board of Education despite the fact that its practical meaning remains subject to litigation in cases about desegregation and reverse discrimination.

If Republicans were confident that a majority of voters felt Roe was an obvious injustice, they wouldn’t hesitate to press the issue, using nomination hearings to press home the fact that Democrats were out of touch with that majority. As it is, the Republicans couldn’t even muster a majority of senators to support an avowedly anti-Roe nominee. Many social conservative activists are up in arms because they see the Miers appointment consolidating the 5-4 decision in the 1992 Casey ruling, which saw three Republican nominees, Sandra Day O’Connor, Anthony Kennedy and David Souter, join the 5-4 majority and hold fast on Roe as settled law. Chief Justice Roberts has already hinted he views Casey, and consequently Roe, as settled law. Miers shows every indication of lacking the overt ideology that has made Clarence Thomas and Antonin Scalia heroes among social conservatives.

Bush campaigned twice on the position that he would appoint overt ideologues such as Scalia and Thomas to the Supreme Court if elected. He’s blatantly reneged on that promise, and one must ask why. Why endure the internal dissension and public attacks for going back on his word? Because he has no choice.

Besides misreading Bush’s motives, Nelson’s column also indulges in intellectual bigotry. In Nelson’s universe, all “born-again” Christians such as Miers are social conservatives lacking Souter’s “agile and open mind.” He then offers George Will and David Brooks — two columnists who earn their bread writing condescendingly and authoritatively about every topic imaginable — as proof that Miers lacks “intellectual distinction.” Apparently Will possesses “the list” of our nation’s best legal minds and Miers doesn’t appear on it. Brooks, for his part, finds Texas Bar Association newsletters full of “vapid abstractions,” which any lawyer can tell you is a hallmark of every bar association newsletter in this country. Nelson cozies on in with these odd bedfellows to regale us with a novel legal distinction between judges who decide cases based on “an objective review of the facts” (apparently a bad thing) and those who properly hover in the ether of constitutional jurisprudence, “arguing late into the night about the Bill of Rights” and matching up “a contemporary social reality to the philosophical underpinnings of our republic.”
It’s no surprise Nelson disdains an “objective review of the facts” regarding Miers’ nomination, as he’s already reached his own decision.

Going for the jugular, Nelson impugns Miers’ character for choosing corporate law over public interest law or an academic career. He concludes that Miers “has shown no interest in or capacity to do the work for which she has been nominated.” Giants of American jurisprudence from John Marshall to Earl Warren had no judicial experience prior to joining the Supreme Court. There was a time where practical knowledge of the world, whether in politics or private practice, was considered far more important than “intellectual distinction” displayed in an academic career. Academics may disagree, but the core responsibility of judges is to make decisions, important decisions, often in less than ideal circumstances, often presented with strong arguments on both sides. The Supreme Court has precious few slam-dunk decisions, no matter what Justice Scalia may say.

The essential quality for a good judge is an ability to set aside preconceptions and remain wary of one's own bias so one may fairly weigh the opposing arguments that come before them. I don’t know whether Miers will be a great, or even good judge. I do know those who support or condemn her on the basis of the meager public record we now have before us clearly do so in ignorance and presume a great deal in so doing. Rather than shedding light on the Miers nomination, Nelson has simply made clear why we’ve never had a columnist nominated to the Supreme Court.