Column: Why Harriet?

By Elie Dvorin

When President Bush announced Harriet Ellen Miers as his second selection to the Supreme Court one week ago, I came to the realization that, for all his tough talk, President George W. Bush is weak and inept.

For decades, liberals have hijacked the Court and used it as tool to rewrite social policy and force a leftist agenda on the public, as opposed to its intended role, a body of constitutional interpretation. Bush missed an opportunity to take back the Court.

Traditionally, Republican presidents have done a horrible job at gauging nominees’ judicial philosophies on the bench. Eisenhower appointed Earl Warren and then referred to him as “the biggest damned fool mistake” he ever made in his life. Nixon erred with his choice of Harry Blackmun. Ford’s choice of John Paul Stevens is still a pain in the side of conservatives. Reagan’s selection of Sandra Day O’Connor was mediocre at best and George Walker Bush’s “can’t-miss” selection of David Souter, well … missed. It’s no doubt that conservatives are uneasy with Bush’s “trust me” approach with the Miers nomination.

Democratic Senate Minority Leader Harry Reid apparently pre-approved Miers before her nomination. If that doesn’t send a signal to conservatives, I don’t know what will. Bush promised nominees in the mold of Antonin Scalia and Clarence Thomas. Although Miers may turn out to be a decent justice, there is nothing in her record that would indicate she is a strict constructionist, something the Court needs desperately right now to combat the judicial activism from the left.

It wasn’t necessarily Bush’s choice of Miers that abandoned his conservative base; it was the fact that she was nominated when J. Harvie Wilkinson, Michael Luttig, Michael McConnell and other proven conservatives were available. Furthermore, Miers is 60 years old, which significantly limits the time she’ll be able to affect the Court (something that may turn out to be a good thing).

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Nobody in his or her right mind will argue that a major contributing factor to her nomination is her gender. Simply put, she’s a quota pick. Bush wouldn’t want to be seen as the president who oversaw the number of women on the Court cut in half because the left would twist that into charges of sexism. Instead of standing up for a conservative pick, Bush caved in and appeased those that wanted to see a woman – any woman – on the Court.

The Court, by its very nature, is supposed to be immune from the political whirlwinds. The camera ban in the Supreme Court building as well as the life tenures of the justices are demonstrative of the notion that the Court is an insulated body, one whose judgments should be as far removed from public opinion as possible. If the Court itself should be immune from political pressure, why should the appointment process for the members of the Court be any different?

This stems from a misunderstood notion that there needs to be diversity on the Court – not a diversity of judicial philosophy, but a superficial diversity (race, gender, etc.). Unlike Congress, the Court is not supposed to be a representative body subject to the whims of the people. There are only two things the Court needs: intellectual firepower and judicial restraint. The jury is still out on whether Miers possesses either of those attributes.

Bush had an opportunity to make a statement and take action to combat the judicial activism he so boldly speaks out against. He let that opportunity come and pass, and now we’re left with an unknown crony awaiting confirmation to arguably the most important position in the government. She’s a stealth candidate – the kind a president appoints when he doesn’t want to fight for a nominee. Stealth candidates tend to do well in the confirmation process, but their unpredictability often backfires. If Bush wants to avoid making the same mistake that so many other Republican presidents have made, he should withdraw the nomination of Harriet Miers.

Elie Dvorin is a senior in LAS. His column appears every Monday. He can be reached at [email protected].