People seem generally stunned by President Bush’s nomination of Dallas attorney Harriet Miers to the Supreme Court. The confirmation process is almost certianly to be interesting and contentious. The nation will be allowed to get to know more about this woman that few of us know anything about at the present moment.
I find the reaction of both the Left and the Right more than interesting. In fact, I find such reactions very revealing of the flaws on both sides. The far Left seems intent on opposing anyone Bush nominates. Have these folks forgotten that Clinton nominee Ruth Bader Ginsburg was overwhelming approved with the wide support of Republicans who strongly opposed her views on many social issues? Have they also forgotten that Ginsburg refused to answer Republican questiuons about contentious social issues preferring rather to say that she would face each issue as fairly and openly as possible when it came to the Court? (This was exactly what John Roberts also said and did.) And have these liberals forgotten that the legal viewpoints of such justices are perennially a "campaign issue" and thus the president is allowed, under the Constitution, to nominate the person he (or she) feels is most consistent with the views expressed by the people who elected the president?
Thankfully the Democratic Party is not entirely represented by such radical voices, as the confirmation of Chief Justice John Roberts illustrated a few weeks ago.
From the Right we also get strong reaction to the Harriet Miers appointment. From Rush Limbaugh, to Phyllis Schlafly’s Eagle Forum, conservative forces have formed strongly and openly in protest. The common criticism is that Harriet Miers has no court experience, thus no proven track record on contentious social issues. I find this attack curious. When Bush was campaiging he was asked, on the stump and in the debates, if he would use a "pro-life" litmus test for such an appoinment? He consistently said, "No." He then went on to define the kind of person he would look for in nominating a justice. He referred to people who would have an essentially conservative approach to interpreting the law, thus to persons who would act within the parameters of such a philosophy.
It seems to me that the president has nominated someone who is exactly the type of person that he promised in his campaign. The fact that majority leader Harry Reid (D-Nevada) likes her is now seen as a negative. This reveals, to my mind, several of the flaws in the Right’s position.
First, the Right too often argues for more conservative interpretation of the law and then seems to want social conservatives of only a particular sort appointed to the bench. I am for making abortion illegal personally. I do not, however, believe the best way to make it illegal is to appoint judges who hold to a "litmus test" on this issue. I think this is partly how we got into the present mess. A wrong on the Left doesn’t call for a wrong in reponse from the Right.
Second, when President Bush says that he "knows" Harriet Miers he is surely right. His father trusted his advisors and we got a justice that the Right despises. In the case of Harriet Miers we have a person the president clearly knows very personally (thus the charge of cronyism is also being advanced). Bush has known Ms. Miers for many years. I personally think this is extremely valuable knoweldge in terms who he has now put forward.
Third, the idea that the court cannot change the person who becomes a judge is simply a myth. Of course it can, and I think it should, at least in some ways and in some cases. A good judge must hear all the facts, read and study the case, and only then render a fair and sound decision. Simply put, a rigid ideologue does not always do this well and often does not make a good judge.
Fourth, it is right that all parties, and appointed legislators, question Harriet Miers. But this process is, finally, about politics as much as anything. We will not alter the social fabric of America by politics. We will only alter it by culture-wide renewal and by finding new gatekeepers who can impact all of culture intentionally. This is how things go in the present situation and it is the only way that change will ultimately occur. The appointment of Harriet Miers is important but it is not in the category of the "most important" things. In my view, too many conservatives have missed this crucial point.