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A canticle for Harriet Miers

In A Canticle for Leibowitz, Walter Miller posits a catastrophic post-nuclear future in which the monkish devotees of the blessed Saint Leibowitz pore over the sacred text he left behind: “Pound pastrami, can kraut, six bagels — bring home for Emma.”

Reviewing the public record and professional writings of Harriet Miers to decipher her political and constitutional views, I feel like one of the Brothers of Leibowitz. There simply isn’t much to work with.

From her year as Texas Bar President in 1992, we regularly find such mind-numbing statements as this:

Education, effective communication, and cooperation are the solutions often offered for our worst community ills in this country. Cities torn by strife call for better educational efforts, improved communications among political leaders (and among those leaders and the people they serve), and cooperation from all areas of the community to focus resources on finding solutions to problems. These approaches frequently appear to bear fruit and provide some hope for the future.

In a long legal career, including service on the Dallas City Council and the Texas Lottery Commission, it is almost impossible to find the expression of a substantive political, legal or constitutional position on a matter of public controversy. Such expressions as there are do not suggest that she fits the mold of a Justice Scalia or Thomas.

On the contrary, Ms. Miers seems to me most fairly compared to Lewis Powell, Jr., the justice who spent his distinguished legal career in private practice, including 10 years as chairman of the Richmond School Board and a term as president of the American Bar Association. Although it seems to me that Powell had a substantially more impressive record within the profession than Ms. Miers does, his public record gave little hint of his legal or constitutional views. Whatever his other merits as a gentleman, counsellor and community leader, as a justice Powell voted with the Roe majority and was the author of the mischievous controlling opinion in the Bakke case that has wrought so much damage to the ideal of a color-blind society over the past 30 years.

Justice Powell, of course, does not represent President Nixon’s only disappointment on the Court, or even his greatest one. When Nixon appointed justices such as Burger, Blackmun, and Powell, he undoubtedly did so in the sincere belief that they would resist the encroachments of the Warren Court on the Constitution and self-government. (President Reagan undoubtedly appointed Justices Kennedy and O’Connor to the Court in the same sincere, albeit mistaken, belief.) Instead, they extended and exacerbated the encroachments of the Warren Court.

To be sure, there were extenuating circumstances. The legal profession simply didn’t offer much in the way of a (judicial or non-judicial) bench from which an originalist jurisprudence might reject government by judiciary and reclaim the Constitution as the charter of limited government. Times have changed.

Thus, when President Bush campaigned on the promise to appoint justices who would strictly construe the Constitution and appoint justices in the mold of Scalia and Thomas, his promise had a meaning that could be measured against the record of a given nominee. We no longer live in an era in which it is necessary to take a blind leap in the dark on any given appointment.

The Federalist Society, for example, was founded in 1982, during the first term of the Reagan administration. The Federalist Society has by itself over a generation provided a forum in which attorneys from all walks of the profession and of all persuasions have been given a forum to express views on issues of law and public policy. Nevertheless, Harriet Miers appears to have shunned participation in the Federalist Society as some kind of a blight.

But for the fact that she is President Bush’s nominee, Harriet Miers is a blind leap in the dark. The absence in her record of any substantive position bearing on constitutional issues has left the White House in the position of defending her nomination by attacking its critics. Although the White House has touted her status as “the first woman who…,” it has served up nothing to support President Bush’s assertion that she will be a justice who interprets the law rather than legislates from the bench — the identical verbiage with which President Bush (41) introduced the nomination of David Souter to the Court in 1990.

The gap between President Bush’s promise to appoint justices of a specific mold and the evidence to support the proposition that Harriet Miers fits the mold makes her nomination a test of faith for supporters of President Bush. One may credit President Bush for nominating Harriet Miers in good faith, and yet come to the conclusion that in this case he has made a mistake.

If I were a senator, I think I would vote to confirm Ms. Miers, assuming that she acquitted herself honorably in the confirmation hearing and that I were able to work through the issue raised by R.J. Pestritto in “Advice and consent.” But if I were Ms. Miers, on sober second thought I would ask to have my name withdrawn from consideration.

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