Bench Memos

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More Thoughts on Miers


I agree with Andy McCarthy and Gerry Bradley that, in nominating Harriet Miers, President Bush has wasted an opportunity to use the nomination process to try to advance the public understanding of what the battle over the judiciary is all about. I also think that the White House has seriously underestimated the demoralizing effect of a “trust me” strategy. Here’s an excerpt from a typical e-mail from one former Bush loyalist:

Harriet Miers?? Harriet Miers?? (I have to say it over and over again, because I just can’t believe that it’s true). It’s like Bush has become the cronyism perpetrator that his detractors have always alleged he was. I am fully willing to believe that she is a capable person and, probably, will vote the right way on many cases (but, then again, so did O’Connor 80% of the time). But, can anybody honestly argue that Miers was the best person (or woman) available? Is Harriet Miers the legal jurist we’ve been waiting for since the Souter debacle to stem the tide of liberal jurisprudence and make her mark on legal scholarship? Was she the reason I and many of my colleagues stood in the freezing rain on election day in Eastern Ohio to GOTV?

Your sources say that Bush chose her because he thought she was the best that could be confirmed. That’s such a cop-out. When it came to tax cuts and the war, Bush didn’t seem to care about what people told him was possible. He fought (and won) things that pundits on both sides of the aisle said would not happen. But I (and many, many, many other social conservatives) did not vote for him to cut taxes or to go to war, but because of the Supreme Court.

You are, of course, correct that all of that is history now, because she is the nominee. But, that doesn’t mean that we should simply rally round the flag and bury our disappointment. Bush betrayed me and everyone else out there who expected him to fight for the future of Constitutional law, and he should be made to know it. Harriet Miers may be conservative and she may be pro-life, but that alone does not merit a seat on the Supreme Court. Nothing in her background (or in the opinions of the people I know at the White House) gives any assurance that she is capable of becoming a stellar jurist, much less of inspiring and convincing those unschooled in an honest interpretation of the Constitution. Bush has squandered the goodwill we gave him (not to mention squandering the opportunity to appoint a great legal mind to the Supreme Court) and I fear that the GOP will suffer for it. Boy, if I’m thinking like this, Bush is gonna be in big trouble, because normally I’m the biggest team player you can imagine. I worked my butt off for Bush in 2000 and 2004.

Again, I’m inclined to try to make the best of the cards that have been dealt. I also take assurance from what folks who know Miers well tell me, but I’m certainly not asking anyone to trust me, much less to trust unnamed individuals whom I trust.

In the best of scenarios, Harriet Miers will show this Supreme Court term—in the decisions that come down by the end of June 2006—that she is the sort of justice President Bush said she will be. As it happens, the cases on the Court’s docket should give her that opportunity.


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