Bench Memos

From Elaine Donnelly

at the Center for Military Readiness:

Message to Pro-Military Leaders and Friends:

I am very disappointed by the President’s choice for the Supreme Court, and regret that I have no choice but to explain the apparent implications of the nomination of Harriet Miers to the Supreme Court.

Ms. Miers does not have a judicial “paper trail,” but her record as White House Counsel is a legitimate cause for concern. Democrats and liberals who are willing to use the military for purposes of social experimentation have reason to be pleased.

As White House Counsel, Ms. Miers either approved of the DoD’s illegal assignments of women in units required to be all-male, which is still continuing in violation of the law requiring notice to Congress in advance, or she was oblivious to the legal consequences of those assignments; i.e., a future court ruling requiring young women to register with Selective Service on the same basis as men because they are now being assigned to land combat.

In either case, White House Counsel Harriet Miers has apparently allowed the Administration to flout the law. (I am assuming that the many messages I sent to the White House on this issue were forwarded to Ms. Miers, among others, as the public debate developed over the past 18 months.)

In the same way, I can only conclude that Ms. Miers approved of the Bush Administration’s incomprehensible retention of Clinton’s “don’t ask, don’t tell” (DADT) regulations, which are different from the 1993 law that Congress actually passed. Again, either Miers is for Clinton’s indefensible, expendable policy, or she does not understand the implications of DADT. President Bush could have eliminated that administrative policy early in his Administration while upholding the law. Instead, the confusing illogical of DADT could result in the law being declared unconstitutional by a future Supreme Court decision, with our without reference to foreign court rulings.

Judge Michael Luttig, as a member of the 4th Circuit Court of Appeals, wrote unequivocally about the difference between the law and DADT. Instead of naming Luttig or someone like him to the Supreme Court, Bush has named a less-than-stellar nominee because she is an old friend. That relationship would be enough to recommend Ms. Miers to any other administration job, but not to the Supreme Court. Too much is at stake.

In August I took the precaution of making a special trip to Washington to ensure that everyone concerned with the Roberts nomination understood what the Lohrenz v. Donnelly & CMR case, which D.C. Court of Appeals Judge Roberts helped to dismiss, was all about. I also raised the judicial issues of deference to the military and opposition to foreign court opinions being used in Supreme Court decisions. Democrats did not raise the Lohrenz case, which was fine, and Roberts gave excellent answers on the judicial/military issues that CMR is concerned about.

But on both of these judicial/military issues, we now have a nominee who is likely to confuse the issue of what the Administration’s position is on women in combat, registering women for Selective Service, and gays in the military. To which policy will the Supreme Court defer?

As with women in combat, the President has said one thing and done another, and let us down. What’s worse, it appears that he has let the military down.

With disappointment,

Elaine Donnelly

PS: For more background, see this article on the subject, which appeared in Human Events and the Washington Times in August.

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