Against Harriet Miers for the High Court

Harriet Miers is a very bad choice for the Supreme Court. None of the arguments for her nomination given by the White House or by loyal Republicans are convincing. They are, rather, ideological rationalizations. This is why.

Conservatives have long argued that political liberalism, having largely failed to win the electorate, has used the courts to implement its leftwing ideology. Liberals have placed activist judges in position of power to make law instead of faithfully interpreting it according to the intent of the Constitution. John Whitehead forcefully made this argument over twenty years ago in The Second American Revolution, and it is taken for granted in most thoughtful conservative circles. The way to turn back this agenda is to appoint judges with a conservative legal philosophy. Charles Krauthammer forcefully makes this point in his October 7, 2005 column:

"For half a century, liberals have corrupted the courts by turning them into an instrument of radical social change on questions -- school prayer, abortion, busing, the death penalty -- that properly belong to the elected branches of government. Conservatives have opposed this arrogation of the legislative role and called for restoration of the purely interpretive role of the court. To nominate someone whose adult life reveals no record of even participation in debates about constitutional interpretation is an insult to the institution and to that vision of the institution."

The nominee’s legal philosophy means everything given this situation. One may be “personally opposed” to abortion, for instance, but support the supposed “right to privacy” invented by the activist jurists in the notorious Roe vs. Wade decision in 1973. This was the case with Judge Kennedy now on the high court. Or, one may personally not think abortion is morally wrong, but consider Roe vs. Wade a legal embarrassment because it is terrible law. This is true for someone like Charles Krauthammer.

Given this perspective, what is needed on the Supreme Court are great legal minds that can defend and implement an originalist philosophy of law. One’s political or even religious convictions are secondary to this fact. An evangelical Christian (and I am one) may make for a terrible jurist. The evidence is that Harriet Miers shows no evidence of legal brilliance, whatever her theology. She has written next to nothing on law, let alone on the sophisticated issues of Constitutional law. Excerpts from a column she wrote for The Texas Bar Journal are abysmal, as David Brooks pointed out in recent a column, which ran in the October 14 edition of The Rocky Mountain News. The language is weak, vague, and platitudinous—much like the language abominated in Don Watson’s acerbic critique of weasel and wimpy language, Death Sentences. She gives us no evidence of an incisive mind or pen. Brooks doesn’t pull any punches when he writes that “the quality of thought and writing doesn’t even rise to the level of the pedestrian.” George Will, in his October 4, 2005 column, makes a similar point while rebutting the idea that we should simply trust President Bush on this issue:

"It is not important that she be confirmed because there is no evidence that she is among the leading lights of American jurisprudence, or that she possesses talents commensurate with the Supreme Court's tasks. The president's "argument'' for her amounts to: Trust me. There is no reason to, for several reasons.

He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections."

This nomination could well determine the course of the Supreme Court for decades to come. What America needs is a well-qualified, road-tested, and sharp legal mind that adheres to a conservative Constitutional philosophy. Such a nominee would provoke a battle royal in the Senate. So be it. This truth is worth fighting for.