Crony Constitutionalism
by The Editors


The nomination of White House counsel Harriet Miers to fill the seat of
retiring Justice Sandra Day O'Connor is a measure of George W.
Bush's unprecedented political weakness. With the Iraq debacle, the
Katrina disaster and the DeLay indictments, ambitious Republicans are
now distancing themselves from the White House. The O'Connor vacancy
presented a dilemma: On the one hand, appointing a judge bearing the
activist right's stamp of approval on abortion, the environment and
other contested issues would court not only unified opposition from
Democrats but defection by moderate GOP senators. On the other hand,
appointing a genuinely distinguished moderate jurist, legal scholar or
political leader would insure a far-right revolt.

Bush's solution: Appoint a personal adviser with few apparent
qualifications. Miers has never argued a Supreme Court case, published a
significant law-review article or shown in her career any interest in
constitutional issues. It's true that historically Justices have carried
diverse résumés, and until recent years many came to the
Court without experience on the bench. But comparisons to Earl
Warren or William Rehnquist do not flatter Miers, whose "leadership"
consists of managing a law firm's representation of Disney and Microsoft
and keeping Bush clear of fallout from the Texas lottery scandal and his
National Guard desertion.

There is still much to learn about Miers, but it's already clear that
her nomination is an act of crony constitutionalism at a time when
Bush's agency-packing schemes have led FEMA and Homeland Security to
disaster. As with Chief Justice Roberts, Bush's main interest seems to
be an Associate Justice friendly to his expansion of executive powers.
As White House counsel, Miers is surely implicated in the profound civil
liberties and presidential-powers cases now wending their way through
the courts. The Judiciary Committee must aggressively seek the tenor of
her advice on these matters--if for no other reason than to protect the
Supreme Court institutionally from a conflict of interest, since cases
in which Miers has given advice will probably be heard by the Court.

It also must be said that while Miers has no track record on
constitutional matters, she is hardly a cipher. Despite unhappiness in
some corners of the right with her appointment, she appears to be a
committed social conservative, voting against legalizing gay sex during
her brief stint on the Dallas City Council, donating to Texans United
for Life and working unsuccessfully to turn the American Bar Association
away from its support for abortion rights. As president and managing
partner of Locke Liddell & Sapp, she oversaw a law firm that worked
assiduously for Texans for a Republican Majority and was forced to
return an illegal contribution to Tom DeLay's defense fund.

Miers's nomination must not be permitted to survive with the kind of
cheerful evasion that John Roberts brought to his confirmation. Her
scant qualifications and her legal career deserve the closest scrutiny.
So does her White House performance: Bush's vow to refuse to turn over
documents will run headlong into the Senate's critical need to learn
something about the nominee's thinking on weighty constitutional issues.
Bush's political capital continues to erode, and Democrats who played
their cards close to the vest on Roberts now have a chance to stand up
for competence, civil liberties and the Supreme Court itself. As the
President likes to say about schools: It's all about standards.



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http://www.thenation.com/doc/20051024/editors