Jewish World Review Oct. 13, 2005 / 10 Tishrei, 5766

Paul Greenberg

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The mystery nominee | George W. Bush, who's just full of presidential surprises, surprised again when he pulled his latest Supreme Court nominee out of the hat, or rather out of his office staff. The result has been a furious clash — among Republicans.

The Democrats have largely been watching, doubtless with glee, from the crowded sidelines. What a show! It's a cross between family quarrel and ideological schism. Once again, the real fight in American politics is being conducted within a party, not between them.

At this stage of the nomination, it's as if the loyal opposition were being more loyal than opposed. Some Democrats with a sense of chivalry have even offered a kind word for Harriet Miers, whose legal philosophy is largely an unknown quantity — and possibly an unknowable one. For the savviest Supreme Court justices don't reveal their philosophy before they're confirmed. Why risk offending?

For the moment Ms. Miers' views on the law, if she has any, are as wispy as Sandra Day O'Connor's after her years and years on the court. (Some attain mystery by saying nothing, others by saying everything.)

That very little is known about the current nominee's approach to the law hasn't kept the pols and pundits from weighing in. Both her vociferous critics and those withholding judgment take their different positions on much the same grounds: Very little is known about her. Some say that disqualifies her, others that it is reason to keep an open mind. Which isn't easy in this opinionated society.

By her enemies ye shall know her: The best thing about Ms. Miers is that she's been badmouthed by that always entertaining but never serious barb-thrower Ann Coulter. ("Harriet Miers isn't qualified to play a Supreme Court justice on 'The West Wing,' let alone to be a real one.")

Consider the source: Ann the Jungle Warrior would make Attila the Hun look like a Jeffersonian democrat. Her publicity photo will never be complete till she poses in one of those Wagnerian helmets with horns. Or at least a spear in hand.

Not long ago Ann the Ferocious was extolling Joe McCarthy as a role model — as if Tail-Gunner Joe hadn't sufficiently embarrassed his party, and the whole anti-Communist cause, when he was still around. For some of us, being opposed by Ann Coulter qualifies as a ringing endorsement. Not that she has a closed mind; hers is more a doubled-sealed, triple-bolted, concrete-reinforced bunker — complete with ever-firing cannon.

Then again, Ms. Miers has been endorsed by The Rev. Jerry Falwell, he of the more sanctimonious wing of American politics, on no detectable grounds other than blind trust in Our Leader. Uh Oh.

Couldn't we just wait and see what the lady has to say for herself? Nope, say some of the more thoughtful critics on the right like Charles Krauthammer and George Will, both of whom have joined the rush to the same unfavorable judgment: They're agin her.

Much is being made of this nominee's closeness to the president. She is, in a damning word, his . . . crony! To say the word is to deliver a guilty sentence. But before we're all shocked — shocked — at the idea that a president would not only have close associates but reward them with appointments, it might help to run down a list of presidential cronies who made remarkable, even great, justices of the Supreme Court.

The list would only begin with the greatest of them all, old John Adams' emissary to France, secretary of state and political crony John Marshall. The list would include justices as varied as John Kennedy's buddy Byron White and Lyndon Johnson's disgraced pal Abe Fortas, Richard Nixon's ally William Rehnquist and FDR's adviser Felix Frankfurter.

The author of the Federalist Paper 78, who assured future generations that no president would dare appoint a crony to the proposed Supreme Court, was none other than George Washington's aide-de-camp and party boss, Alexander Hamilton, who would certainly have qualified as a crony of the general's if Washington had ever let his guard down sufficiently to have one.

Of course the general never made young Hamilton a justice of the Supreme Court but only secretary of the Treasury. But who doubts that Counselor Hamilton would have made a fine member of the court? Instead, Washington chose another close associate and author of the Federalist Papers as the first chief justice of the court — the estimable John Jay.

It is not being a crony of the president's that should disqualify a nominee to the court, but what else he — or she — brings to the court. And at this point, Harriet Miers remains a mystery. Would it be too much to ask our learned commentators, that is, professional kibitzers, to hold their fire till the lady makes her appearance before the Senate Judiciary Committee and its not-so-grand inquisitors?

The wisest assessment of Ms. Miers' qualifications or lack of same may have come from Lindsey Graham, senator and gentleman from South Carolina. He proposed to withhold judgment until there's something to judge. How unusual: Here is a U.S. senator acting as if he were a member of a deliberative body.

Why not wait and see, or rather wait and hear, before judging the nominee's fitness for the Supreme Court? Even if she evades the tougher questions, how she does so would be revealing. But at this point, she's still Madame X.

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JWR contributor Paul Greenberg, editorial page editor of the Arkansas Democrat-Gazette, has won the Pulitzer Prize for editorial writing. All the quotations in this column were culled from Tuesday's edition of the Democrat-Gazette. Send your comments by clicking here.

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