When President Bush took office for his second term, he spoke of spending the “political capital” he’d earned by winning re-election. One of the ways he planned to do that was by using his clout to fill some expected vacancies on the Supreme Court.
Bush’s first nominee, John Roberts, faced little opposition (see “John Roberts Confirmed As Nation’s 17th Supreme Court Chief Justice” ) and took his place as the court’s chief justice this week. But opponents have hammered his second nominee, Harriet Miers, giving Bush a stern message that, so far, reads “insufficient funds.”
Surprisingly, the strongest voices speaking out against Miers are not coming from the Democratic side. Bush’s Republican base — which has mostly stood by the president through falling poll numbers on the war in Iraq, the botched response to Hurricane Katrina and scandals involving presidential advisor Karl Rove and several congressional leaders — has taken an uncharacteristically combative stance on Miers’ nomination.
Miers is not the first controversial nominee to the land’s highest court, but the amount of resistance from Bush’s party and his usually reliable conservative base has surprised some and convinced others that the president’s “go with your gut” style of leadership might be wearing out its welcome.
One of the strongest voices of opposition to the nomination of Miers — whom critics have singled out for her lack of experience as a judge — has been that of Robert Bork, who failed to win nomination to the Supreme Court in 1987 after a contentious debate in the Senate over his views on civil and women’s rights.
Bork, a respected conservative judge whose failed nomination resulted in the coining of the verb “to bork,” which means to tear down a judicial nominee based on attacking his character or philosophy, has called the Miers nomination a “disaster on every level.”
Speaking on CNN’s “The Situation Room” on Monday, Bork said it’s hard to know how Miers would act as a justice because, aside from the president, “I don’t think anyone knows her at all.”
Though 41 of the 109 justices in the history of the court did not have judicial experience, Bork said Miers’ lack of any record as a judge is just one of the troubling aspects of her nomination. He downplayed her credential as the first woman president of the Dallas Bar Association, saying, “If you know anything about bar association politics, it is not constitutional scholars who become president of the bar association. She has very little, if any, acquaintanceship with constitutional law, and it’s a very hard thing to get a hold of if you go into the court and start wrestling with it. In fact, you’re likely to get it very wrong.”
Bork also slammed the nomination as a demoralizing “slap in the face” for conservatives, who he said have been “building a legal movement” and have a range of qualified conservative judges and scholars who could have been candidates. Though he expressed sympathy for Miers as a person undergoing this type of intense scrutiny, Bork said the nomination was the “last straw” for Bush, who betrayed his supporters by failing to nominate a judge in the vein of predictably conservative justices Antonin Scalia and Clarence Thomas.
Most damningly, Bork said Bush’s choices of both Roberts and Miers signals an even more troubling trend: that of nominees who have thin paper trails on which to base their qualifications. “[It's] a demoralization of the conservative legal establishment, which is told in effect, ‘If you’re productive, if you stand up out there, you are not going to be chosen.’ ”
In nominating Miers last week, Bush called her a “trailblazer” who has “devoted her life to the rule of law.” The president’s former personal lawyer and current White House counsel, Miers was offered up as the replacement for retiring Supreme Court justice Sandra Day O’Connor. But despite high praise from her boss, critics quickly pounced on the 60-year-old lawyer’s cozy relationship with Bush and her lack of experience trying significant cases.
The pick was especially surprising given the well-documented flame-out of former Federal Emergency Management Agency director Michael Brown, who quit the agency following its bungled response to Hurricane Katrina and charges that he had been given the position in an act of cronyism despite his inexperience dealing with major disasters.
That’s why the 2,000 pages of official correspondence and personal notes made public by the Texas State Library and Archives Commission following a request from the New York Times adds fuel to the fire of those decrying Miers’ personal tie to the president. On the President’s 51st birthday in 1997, Miers wrote, “You are the best governor ever — deserving of great respect,” adding that she found Bush to be “cool” and that he and his wife, Laura, were “the greatest!”
In October 1997, Miers sent Bush a thank-you note for a letter he wrote on her behalf, in which she said that hopefully his daughters, Jenna and Barbara, “recognize that their parents are ‘cool’ — as do the rest of us.”
Given the opportunity to put a conservative stamp on the court’s decisions for generations to come, Republicans and critics on the right have slammed the Miers nomination as a fumbling of Bush’s chance to enact a long-lasting conservative revolution.
Conservative commentator Ann Coulter called the choice an example of “stunning arrogance” on the president’s part, adding, “The president is not supposed to be nominating his personal lawyer for a job on the United States Supreme Court. … It’s embarrassing to hear people describe this as if this is the best woman Bush could get.”
Also troubling to conservatives is their uncertainty about Miers’ views on such issues as abortion and gay marriage, two of the court’s most consistently pressing issues.
Democrats in Congress have mostly remained on the fringes in the debate, content to let their rivals battle amongst themselves. In the latest wrinkle, Judiciary Committee Chairman Senator Arlen Specter (R-PA) said on ABC’s “This Week With George Stephanopoulos” that Karl Rove may be called as a witness during nomination hearings in light of a statement made by politically influential religious leader the Reverend James Dobson of Focus on the Family.
Dobson claimed he spoke with Rove about Miers and that he now knows things about her “that I probably shouldn’t know.” The troubling statement struck Specter and Democratic Senator Patrick Leahy as a sign that Dobson, who has supported the Miers nomination, had been given assurances that Miers would vote to overturn Roe v. Wade, the 1973 ruling that overturned state laws banning abortion, according to an Associated Press report.