By PHILIP GAILEY, Times Editor of Editorials
Published October 23, 2005
Like most White House aides hauled before a grand jury, Karl Rove shopped around for a top-gun Washington lawyer. He hired one of the best, Robert Luskin, a Harvard-educated Rhodes scholar who represented several Clinton administration officials caught up in scandal. Rove, who is known as President Bush's "brain," (is that supposed to be a compliment?) didn't even mind that Luskin is a Democrat.
You can bet that Rove would not have picked the defense-lawyer equivalent of Harriet Miers, the president's nominee to the U.S. Supreme Court seat being vacated by Justice Sandra Day O'Connor. Which raises this question: Why shouldn't we set the bar just as high for Supreme Court nominees as we do for White House criminal defense lawyers?
Maybe Bush feels that Chief Justice John Roberts' highly acclaimed "brilliance" more than makes up for Miers' apparent lack of intellectual heft and experience in constitutional law. Or, contrary to what some Democrats believe, maybe the president is more interested in dumbing down the court than in stacking it.
I am beginning to feel sorry for Miers, a decent and accomplished woman whose fawning loyalty to Bush goes back to his days as Texas governor. The way things have been going, Miers risks not only rejection by the Senate but humiliation by her critics. Last week, the leading Republican and Democrat on the Senate Judiciary Committee took the extraordinary step of asking Miers to resubmit her answers to a standard committee questionnaire. Her first response, some senators said, was "insufficient," "inadequate" and "insulting." Miers promised to try to do better.
Meanwhile, the attack from the right is unrelenting as Democrats stand on the sidelines as gleeful spectators. Miers was "borked" last week on the Wall Street Journal op-ed page by Robert Bork himself. Bork, whose own Supreme Court nomination crashed and burned two decades ago, said the administration's defense of the Miers nomination is "pathetic." And conservative columnist George Will continues to exude contempt. "Such is the perfect perversity of the nomination of Harriet Miers, it discredits, and even degrades, all who toil at justifying it," he wrote.
It's not just that conservatives don't trust Miers, whose core legal philosophy is unknown and who, as far as anyone can tell, has never publicly expressed an opinion on any constitutional issue. They feel betrayed by the president, who promised to pick justices in the ideological mold of Antonin Scalia and Clarence Thomas. Instead, Bush gave conservatives a blank-slate nominee for a seat that could tilt the balance of power on the court.
The White House's marketing of the Miers nomination - like so many things this administration has undertaken - has been a disaster. Trust me, Bush says, Miers will strictly interpret the Constitution and not "legislate" from the bench, whatever than means. At the same time, the president, with a wink and a nod, signals conservatives that Miers can be trusted to vote their way because of her religious views - she's an evangelical Christian - and her personal loyalty to Bush. So which is it: Will Miers decide cases based on her interpretation of the Constitution or will she be guided by her religious beliefs and her allegiance to Bush?
"For decades, conservative thinkers have criticized justices for deciding cases based on their personal desires, feelings or views on policy," John Yoo, a former Bush Justice Department lawyer and now a visiting scholar at the conservative American Enterprise Institute, wrote last week. "Now conservatives are asked to support a nominee on the grounds that Miers will "vote right.' This accepts the dispiriting notion that the court is just one more political institution."
Miers' confirmation hearings could be painful to watch. Whatever one thinks of her thin qualifications - president of the Dallas and Texas Bar associations, a Dallas City Council member and White House counsel - she does not deserve to suffer the sneers and disdain of her detractors or to become fodder for late-night comedians.
If her friends care about her, they should start a "Free Harriet" campaign to salvage what is left of her reputation. If Bush has a compassionate bone in his body, he would try to find an honorable and dignified way for Miers to step aside. As for Harriet Miers, she should ask herself if her loyalty to Bush is worth the brutal and degrading ordeal he is putting her through?