Column: Miers: a Souter in making?

By Shouger Merchant

When politicians realize that they do not have to pander to partisan loyalties, they often make decisions that are in harmony with their conception of public good and a deep-rooted sense of right and wrong. Conservatives live in the great fear that Harriet Miers, after her confirmation might defect to the liberal wing, Souter style.

A major cause of concern for them is that Miers contributed to Gore’s presidential campaign and the Democratic National Committee and is listed as chairman of the 1998 American Bar Association committee that recommended legalization of gay adoptions. But, to lend her some Republican credit, she has served the Bush administration since 2001 in various capacities as White House counsel, staff secretary and deputy chief of staff for policy. Bush has also said he has complete confidence in her political philosophy which is akin to his personal frame of mind. While maintaining that he doesn’t recall ever talking to Miers about abortion, Bush stated, “I know her heart.”

But that isn’t enough for conservatives; they have heard it all before. Republicans now want assurances that nominees who appear to be conservatives will stand their ground when relieved of their parties and labels, unlike their past nominees. Eisenhower appointed William Brennan, who later became the leader of the court’s liberal division, and then Earl Warren, who was Eisenhower’s “biggest damned fool mistake.” Nixon’s appointments Harry Blackmun, who wrote the majority opinion of Roe v. Wade, and Lewis Powell, champion of affirmative action, also betrayed their party alliance.

Then there was Ford appointee John Paul Stevens and Reagan appointees Anthony Kennedy and Sandra Day O’Connor, who deliberated and set many liberal precedents in the past few decades. Last but not least David Souter, nominated by George W. Bush’s very own father was also a “defector.” All of them were sought after as conventional conservatives until they hit the bench.

Why is this a trend? Nobody knows. Maybe they become wiser. Maybe their respect for the constitution and the citizens who put all their trust and faith in the Supreme Court enables them to rethink their philosophies.

But Bush’s elusive appointments this year are causes for concern. Roberts seemed like a stellar candidate with an impressive knowledge of Supreme Court precedents, but some conservatives and most liberals were mad at his appointment because his judicial opinions didn’t tell us much. There is even less material to scrutinize in Miers’ case, since she has never been a judge. But why would Bush nominate someone who has not shown him privately or publicly that he or she will definitely be a strict constructionist especially in the case of Roe v. Wade, assuming that is his operating litmus test?

If Bush hasn’t indeed discussed abortion with Miers, he is taking it for granted that Miers is pro-life because Miers comes from a church that is extremely pro-life. If she is given the chance to decide whether the precedent of Roe v. Wade should stand, she would probably go the Thomas, Scalia and Rehnquist route and vote to strike it down. In the same vein, Bush must have had some indication that Roberts would act in the same way.

Still, I think Miers might actually be a pleasant surprise to liberals on issues other than abortion, given her history of supporting gay rights and adoption (as liberal as you can get). Although Miers’ pro-life stance upsets me a great deal, I earnestly believe that Miers will eventually see the light, like those before her. If she can put all political leanings and party loyalty aside and do what is best for this country, she will be called a Souter. And Souter’s rulings were remarkable exercises of justice. All we can really do now is hope that Miers restores balance on the bench and ensures the upright democratic and due legal process.

Shouger Merchant is a senior in Communications. Her column appears every Wednesday. She can be reached at [email protected]