• Bush’s perplexing stealth pick
Bush’s perplexing stealth pick
Financial Times, London, Tuesday, Oct.
President George W. Bush’s choice of Harriet Miers, White House legal
counsel, for the vacancy on the Supreme Court left by the recently
retired Sandra Day O’Connor, is perplexing – not least for his
After the successful installation of John Roberts as Chief Justice there
was no more eagerly anticipated decision. Conservatives and the
religious right expected Mr. Bush to use this pivotal position to tilt
the court in their direction for the next generation. Liberals have been
preparing to do battle to prevent precisely that outcome.
Both sides will have to wait some time to judge what this choice
portends, because the president has reached into his intensely loyal
inner circle and pulled out someone with no judicial record at all.
Although he was widely expected to replace a woman with another woman on
the bench, this is being seen as a “stealth pick.” That is quite a
gamble at a time when Mr. Bush is desperately trying to regain the
initiative and re-establish his leadership credentials after Hurricane
Katrina and amid collapsing domestic support for the war in Iraq.
Ms. Miers is a lawyer with a background in corporate cases who once
headed the Texas bar association. But she has never been a judge. She
became attached to Mr. Bush’s entourage when, as governor of Texas, he
appointed her head of the state lottery commission. He once described
her as “a pit bull in size six shoes.” Nominating her yesterday, he
underlined that she would “strictly interpret our constitution and our
laws. She will not legislate from the bench.”
That is pretty much the position staked out by Chief Justice Roberts at
his confirmation hearings. He intimated that, whatever his private
views, he would eschew judicial activism and interpret law with rigorous
respect for its corpus of precedents. Yet Mr. Roberts, a mainstream
conservative with impeccable legal credentials, still had half the
Democrats in the Senate vote against him. Ms. Miers, by contrast, is an
unknown quantity. The Republican right, feeling entitled to one of their
own in this vacancy, is sounding at best underwhelmed, worried about
what it does not know about Mr. Bush’s choice. The Democrats are in the
same position. They will conduct a forensic investigation into Ms.
Miers’ record and will almost certainly try to fit her into a
presidential pattern of appointing cronies to sensitive positions.
Just how sensitive will become apparent as and when difficult and
divisive issues such as abortion, federal versus states’ rights or the
death penalty come before the court.
The stage is set for drawn-out confirmation hearings, which is where Ms.
Miers will have to earn her elevation. For all Mr. Bush’s habitual
effusiveness towards those in his tight circle of admirers, there is
little to suggest she is Supreme Court justice material, so far. She has
everything to prove.