Jewish World Review Oct. 3, 2005/ 29 Elul
Trust, but verify
Ronald Reagan used a phrase in his dealings with Soviet President Mikhail Gorbachev: trust, but verify. Reagan's point was that Gorbachev's words sounded good, but that they must be tested to see if he meant them. That standard should be applied to President Bush's nomination of Harriet Miers to replace Sandra Day O'Connor on the U.S. Supreme Court.
The reason verification has special relevance to the Miers nomination is that, like Miers, O'Connor had a thin record. Before her nomination, she was an Arizona state legislator and state judge. Reagan's primary motivation in naming O'Connor seemed to have been to place the first woman on the Supreme Court. In conference and personal calls to conservative political and religious leaders, Reagan promised she would be "OK" on the issues conservatives cared most about, such as abortion. In fact, she turned out to be the swing vote that has maintained the expanding "right" to an abortion for any reason and at any time.
President George H.W. Bush delivered similar assurances to the same conservatives when he nominated David H. Souter to the bench. Souter had served as a judge on the U.S. Court of Appeals for the First Circuit and as a judge on the New Hampshire Supreme Court. He, too, had a thin paper trail. Once on the court, Souter immediately headed left. Conservatives have viewed him as a disaster and a squandered opportunity to end liberal judicial activism.
It matters less to conservatives whether one is a woman or a minority than it does what a nominee believes and whether he or she will be influenced by the Washington and media culture and "grow" in office, which to the left means drift its way.
Miers said the right things at her White House unveiling. She and the president used the code words conservatives like. The president assured us she would "strictly interpret our Constitution and laws. She will not legislate from the bench," a phrase he has used numerous times during two political campaigns and in his nomination of now Chief Justice John Roberts. Miers said "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society," and that if nominated to the Supreme Court, "…I recognize that I will have a tremendous responsibility to keep our judicial system strong and to help ensure that the courts meet their obligations to strictly apply the laws and the Constitution."
In 1993, Miers fought to get the American Bar Association (ABA) to reverse its official stand in favor of abortion on demand. It is not yet clear if she did this because she believes abortion is wrong and was incorrectly decided by the Supreme Court, or if she thought it might appease pro-life ABA members. This is a question that must be asked during her confirmation hearings.
The personal background stuff is interesting, including her groundbreaking efforts as a woman, her pro bono work and concern for the poor and her work vetting other conservative judicial nominees for the president. But the most important question is what does she believe and does she have positions, or convictions? At age 60, one might expect her to have convictions about the law, its purpose and its source.
One person who knew her, former White House speechwriter David Frum, writes of Miers on The National Review Online,"In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me the president was the most brilliant man she ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under criticism that a conservative justice must expect."
That last part is fundamental to conservatives. If she is one of them, will she resist the inevitable liberal undertow that has caused so many recent nominees to lean left when the criticism is intense? In this regard, is she like Antonin Scalia and Clarence Thomas (two of Bush's judicial role models), or is she more like O'Connor, Souter and Anthony M. Kennedy? To borrow a baseball analogy, is she a switch-hitter?
This appears to be the future of judicial nominees named by conservative Republican presidents. We can't have a debate about critical legal and moral issues, because a nominee clearly on the conservative side might not be confirmed. There will be no more Robert Borks to "Bork." So we get people with little, or no, "paper trails" and must accept them on faith.
Conservatives would like to trust the president, but they haven't come this far to live by faith in him alone. They want verification and they should have it before pledging their allegiance to the confirmation of Harriet Miers.
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