Give Miers a Chance
We ought to be crying bloody murder at the new Supreme Court pick.
After all, prominent pro-family voices are denouncing President Bush's nomination of Harriet Miers to the Supreme Court, calling her a dangerous unknown.
So, why aren't we upset? Perhaps we will be after her hearings before the Senate Judiciary Committee. But, so far, we don't find the arguments against her all that compelling. In fact, we find them self-contradictory.
In appointing her, President Bush is accused variously of promoting a stealth candidate and of cronyism. Those who accuse Miers of being a “stealth” candidate like to invoke Justice David Souter. President Bush's father appointed him, it is argued, because he had little record to show how he would vote on the court. As it turned out, he would vote very reliably for abortion — a painful judicial legacy for a president who campaigned as a pro-lifer.
The problem with stealth candidates is that not only the public, but the president himself can't predict how they'll vote. Miers is accused of being a stealth candidate who lacks a record and who, Souter-like, very well may betray the president's good intentions.
But detractors make another accusation, simultaneously: that Miers is a crony candidate. They say she is too well known to the president. Her appointment amounts to a president putting his friend on the court
Well, which is she — the dangerous unknown or the overly familiar?
In fact, it seems that President Bush understands exactly who Harriet Miers is. One of her jobs in the White House was helping Bush vet other candidates for the Supreme Court. Well-connected Washington reporter Fred Barnes quotes White House sources saying that Miers only became a candidate herself after she showed how well she understands Supreme Court issues in interviews with other candidates.
Is that cronyism? Maybe. Is it bad? Not if it produces a judge who is faithful to the Constitution and our country's bedrock principle that all human beings have a right to life.
Two other accusations about Miers also seem to us self-contradictory. On the one hand, that she is under-qualified and, on the other, that she may be too much of a moderate to overturn Roe v. Wade, the 1973 Supreme Court case that made abortion legal at any point in pregnancy, and in all 50 states.
Usually, when making this argument, the accuser points out that Bush passed over many heavy-hitting, erudite candidates and appointed “his own lawyer” to the court. But we wonder: Would professorial constitutional experts really be more likely to overturn Roe v. Wade than an evangelical Christian woman who, as president of the Texas State Bar, took on the American Bar Association over its stance on abortion?
No specialized knowledge is necessary to understand and apply the principles our country was founded on. No less than the great constitutional commentator Joseph Story (1811-1845) said so:
“Constitutions are not designed for metaphysical or logical subtleties. … They are instruments of a practical nature, founded on the common business of human life, adapted to common wants, designed for common use, and fitted for common understandings. The people make them; the people adopt them; the people must be supposed to read them, with the help of common sense.”
The central crisis in American democracy today is precisely a misunderstanding of the power of our court system, and, most of all, the U.S. Supreme Court.
The Court isn't a high priesthood that declares infallibly on the meaning of a strange document that takes tortuous mental exercises and years of training to understand and expound upon. The Court is one of three co-equal branches of the federal government interpreting the plain language of the Bill of Rights.
Yes, justices should be qualified. But no, that needn't mean years of Herculean labors in Ivy League schools.
Pro-lifers are right to be vigilant about the president's commitment to our cause. We should watch the hearings carefully and let our senators know what we think of her.
But too often, pro-lifers demand that the president play a game he can't win rather than one he can. If Bush wants to seat a pro-life justice who can win confirmation onto the court instead of undergoing a gargantuan struggle over one who possibly can't, then why not let him?
We hope that senators will give Harriet Miers the hearing she deserves.
- October 16-22, 2005