Bush's mysterious choice

Oct 3rd 2005
From The Economist Global Agenda

George Bush has nominated Harriet Miers, the White House counsel, to replace Sandra Day O’Connor on the Supreme Court. Ms Miers has never served as a judge, making her views on key legal matters hard to discern and thus disappointing activists on both the left and right who wanted clear signals of her voting intentions

THE battle over Sandra Day O’Connor’s seat on America’s Supreme Court has been shaping up for half a century, ever since a long string of appointments by President Franklin D. Roosevelt swung the court decisively to the left. Conservatives accused the mid-century courts of “judicial activism” as left-wing groups increasingly sought to bypass the legislative system by obtaining rulings from ideologically friendly judges. Some of those decisions are among the most revered in American history, such as Brown v Board of Education, the landmark desegregation case. Others are still controversial, decades after they were issued, particularly Roe v Wade, which established a federal right to abortion.

Conservatives, frustrated at having key social issues taken out of their hands by fiat, have long plotted to retake the courts. Their moment may finally have come. President George Bush has been given the opportunity to nominate two justices in short order: one to replace William Rehnquist, the Chief Justice, who died last month of thyroid cancer, and one to replace Sandra Day O’Connor, the first woman on the court, who announced at the end of its last term that she would be stepping down as soon as a successor could be named. On Monday October 3rd, just as the recently installed John Roberts was starting work as the 17th Chief Justice, Mr Bush announced that he was nominating Harriet Miers, the White House counsel, to replace Ms O’Connor.

This will satisfy those (including the president’s wife) who have been calling for Ms O’Connor to be replaced by another woman. But though that issue is settled, others are not. Despite some Democratic grousing, Mr Roberts sailed through his confirmation hearing. Ms Miers may not have such an easy time of it. Resistance to Mr Roberts was lessened by the fact that he was supremely qualified, there was no evidence he was an ideologue and, perhaps, that he was replacing the conservative Mr Rehnquist and thus was not likely to move the court to the right.
Ms Miers, on the other hand, will be stepping into the shoes of a justice who has often been the swing vote on controversial issues, such as abortion and the separation of church and state. Democrats are determined that her replacement should be at least as liberal as she is, while Republicans are equally resolved to see a steelier brand of conservative take her place.

This may be why Mr Bush selected Ms Miers, who is something of an enigma. A prominent Texas lawyer, she was among the first women to rise to power in a large law firm there, and the first female head of the state bar. Mr Bush’s nomination speech made much of her feminist credentials, as well as her gumption in working her way through college—Mr Bush once described her as “a pit bull in size six shoes”. But Ms Miers has never served as a judge, and thus there is very little to indicate how she might vote on key issues. (The appointment of someone who has never been a judge is not that unusual: Mr Rehnquist himself had no previous judicial experience, for instance.)

Both Ms Miers and Mr Roberts have worked extensively in Republican administrations, making Democrats fear that the common element in these nominations is that Mr Bush knows much more about them than the American public does. But if Ms Miers takes the same line in her hearing as did Mr Roberts, who refused to offer opinions on matters that might come before him as a justice, Democrats will have little ammunition with which to kill her nomination.

It seems unlikely that Ms Miers will voluntarily offer opinions that Democrats could use to justify a filibuster (a way of stalling congressional voting), which is the minority party’s only weapon against a nominee it dislikes. Democrats will undoubtedly seek to get their hands on Ms Miers’s writings from her time on the president’s staff, but the White House will just as certainly refuse, citing executive and lawyer-client privilege.

There are also drawbacks for Mr Bush, however, in a nominee with no record on the issues so dear to the hearts of his political base: some conservatives are already making it clear that they are uncomfortable with the mysteriousness of Ms Miers’s opinions. Many in the Republican Party have been longing for a high-profile public debate on a host of controversies; now they may not get that. In his nomination speech, Mr Bush attempted to assuage these fears by stressing that Ms Miers can be relied upon to follow the law rather than “legislat[e] from the bench”—a sort of coded message to activists that she will be a reliable vote for their cause. Ms Miers echoed those sentiments in her acceptance speech.

But conservatives are still haunted by the memory of David Souter. Mr Souter too had only a sparse paper trail on controversial issues; he was nominated to the court in 1990 by the current president’s father, who wanted to avoid the kind of bruising confirmation battle that Ronald Reagan had faced over Robert Bork. Mr Souter has been a grave disappointment to the Republican base, and it is keen to avoid a repeat.

The nomination also leaves Mr Bush vulnerable to charges of cronyism, which have long dogged his administration. But while the personal connection undoubtedly played a role, it seems more important that Ms Miers looks relatively easy to confirm compared with solidly conservative judges (like Janice Brown, for instance). With his popularity severely eroded by the economy's fading dynamism, the suffering in Iraq and the botched rescue effort after Hurricane Katrina, Mr Bush seems to be unwilling to spend political capital on installing someone whose record indicates they will move the court in a direction that pleases his Republican base. For now, activists on both sides will have to be satisfied with the fact that their opponents are just as worried as they are.

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