Commentary: Mortgaging Miers’ Future
President Bush, in his enthusiastic defense of his choice of Harriet Miers for a seat on the Supreme Court, has made more complex her task before the Senate Judiciary Committee. But, more significantly, he has attempted to mortgage her future service, if the Senate does approve her for the Court. As a result, a nomination that already seems to be in some trouble may be even harder to sell to the Senate and to the country.
Perhaps entirely sincere in attempting to persuade his conservative political allies that Miers would not become a liberal — or even a moderate — on the Court, the President on Tuesday put her in a position to either endorse his concept of constitutionalism for all of her service, come what may, or else find a way repeatedly to justify a betrayal of his reason for choosing her. Few (if any) Justices have gone on the Court in modern times with such a burden of loyalty to the President who placed them there. The independence that life tenure supposedly would guarantee a Justice Miers may well be compromised seriously if, over the next 20 years, she knows she will always be measured against his definition of her.
The first problem with that burden is a short-term one: Miers, as the longtime legal adviser to Bush and a staff aide of his through his presidency, is already encountering widespread doubts about her ability to be her own person on the Court. To demonstrate that ability, she has to contradict the President’s firm declaration that her philosophy of the law will remain locked for decades in the time capsule of the Bush presidency. If the President is right about her, she could be reminded, no change in political, social, cultural or economic circumstances, however radical, could move her to rethink constitutional dogma. Could she declare her independence of this President in a war on terrorism case, as Justice Antonin Scalia (a favorite of the President) did last year? How does she convince the Committee of that?
Is this a misreading of what the President was saying on Tuesday? He could not have put his expectations more clearly: “I know her well enough to be able to say that she’s not going to change, that 20 years from now she’ll be the same person with the same philosophy that she is today. She’ll have more experience, she’ll have been a judge, but, nevertheless, her philosophy won’t change. And that’s important to me…I don’t want to put somebody on the bench who is this way today, and changes. That’s not what I’m interested in. I’m interested in finding somebody who shares my philosophy today, and will have that same philosophy 20 years from now…That’s the way Harriet Miers…is.”
The President very likely was reciting from “talking points” developed by his aides. His own acquaintance with constitutional ideas is, at most, fleeting and superficial. He seemed to be confining his remarks to his (and her) philosophy on judging: judges should be strict constructionists, and should not “try to supplant the legislative process.”
The implications of that, of course, are far broader than the simplistic talking point of “strict constructionist” would imply. It is a view that deeply questions the whole concept of judicial review in a constitutional order, the entire meaning of Marbury v. Madison. (It is worth noting that Bush’s first nominee to the Court, Chief Justice John G. Roberts, Jr., did not embrace that philosophy in his testimony to the Judiciary Committee. Indeed, Roberts repeatedly lauded Justice Robert H. Jackson for lapses on the Court in loyalty to his mentor, President Franklin D. Roosevelt.)
The legislative process is perfectly capable of going awry, constitutionally speaking — and, of course, it has done so at least since John Marshall declared that the Constitution — as interpreted by the Court — trumps legislative error. Judicial review also trumps Presidential error, constitutionally speaking. (Recall the 1952 decision to strike down President Truman’s seizure of the steel mills during the Korean War, the model of judicial independence which Roberts repeatedly cited.)
It is very easy to recall Justices who changed during their service on the Court. Take some recent examples. The late Chief Justice William H. Rehnquist changed, in significant ways; he even abandoned his own views (from Justice Department days) that “Miranda warnings” had no foundation in the Constitution and that Congress therefore could undo them. What turned Justice Clarence Thomas into such a sturdy defender of “originalism” that he would seek to overturn a host of the Court’s most basic precedents, remaking constitutional jurisprudence wholesale? How does one explain Justice Anthony Kennedy’s development into into the philosopher of the New Federalism on the Court? Who could have predicted that Justice Sandra Day O’Connor, a modest achiever in state politics, would become the dominant figure on the Court for most of a quarter-century? None of this was predictable.
One can find conversions throughout the Court’s history, early and late. To mention just a few: the first (and the second) John Marshall Harlan, Chief Justice Earl Warren, Justice Owen Roberts — and, of course, Justice Jackson.
Of course, President Bush, his aides and his political allies think of other conversions: especially, Justice David H. Souter’s alignment with the Court’s moderate-to-liberal wing, and Justice Kennedy’s development of an entirely new concept of human dignity, grounded in the Constitution? And don’t forget Justice Harry Blackmun, the author of Roe v. Wade. That is what Bush no doubt was promising that a Justice Miers would not do.
When Earl Warren was governor of California, and strongly defended the forced imprisonment of innocent Americans solely because they were of Japanese ancestry, could anyone have imagined that, as Chief Justice of the United States, he would lead the Court toward the repudiation of the nation’s sordid racist past?
If President Bush knows, with confidence, that a Justice Miers would never adapt in that way, he has put her on the defensive on the first day after she was chosen, and perhaps for the balance of any years she would spend as a Justice.
“If the President is right about her, she could be reminded, no change in political, social, cultural or economic circumstances, however radical, could move her to rethink constitutional dogma. Could she declare her independence of this President in a war on terrorism case, as Justice Antonin Scalia (a favorite of the President) did last year? How does she convince the Committee of that?
“Is this a misreading of what the President was saying on Tuesday?”
Yes, in my humble opinion, it is a misreading. I understood the President to be expressing confidence that Ms. Miers will not drift into the view that the Supreme Court sits as a continuing constitutional convention, with the authority to propose and ratify its own amendments on the pretense of interpreting a “living document.”
This does not in any way imply she will always rule in the administration’s favor. A Justice can very well believe that a government action violates the Constitution as understood at the time of its adoption. In that case, fidelity to originalist principles requires, not forbids, the Justice to vote against the government.
Nor does this view imply that a Justice can never change his or her mind on a question of what the Constitution actually requires. Justice Thomas has changed his view of what the Sixth Amendment jury trial right entails based on further research into what it meant at common law, not because he concluded that the Sentencing Guidelines were inconsistent with the evolving, global, jurisprudential ether. This, too, is entirely consistent with originalist principles.
The view that the President endorsed, and assured us that Ms. Miers also believes, is not only consistent with Marbury v. Madison, it is required by it:
“That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness, is the basis, on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority, from which they proceed, is supreme, and can seldom act, they are designed to be permanent.” 1 Cranch, at 176.
Comment by Kent Scheidegger — October 5, 2005 @ 8:52 pm
I found the President’s remarks to be a little scary. He reiterated time and time again she would not change her views over the next twenty years. Supposedly he did not ask her her views on Roe v, Wade, but I suspect that that meant he did not ask her after she was under consideration for the vacancy. She was a frequent guest at both Camp David and the ranch and considers the President “The most brilliant man she ever met,” according to David Frum, a former Bush speechwriter.
I fear too fear that she was compromised by the blatant appeal to the right the President made. He would not have dared make such claims about Chief Justice Roberts during the confirmation process. He was clearly signalling the faithful that he knows.
Comment by Ware — October 5, 2005 @ 11:39 pm
Very insightful piece, Lyle. I wonder if Miers can turn this around if she can clearly establish her independence during her hearings? I think there are several ways she can safely distance herself from President Bush’s comments.
In other words, she’ll have to pay off Bush’s mortgage during the hearings. Of course she’ll decline to answer questions, as Roberts did, because she won’t want to make judicial reps and warranties to members of the committee. But unlike Roberts, she’ll now have to work harder to convince them that she has made no such promises to Bush.
If Bush holds the first note, Vice President Cheney took out a second mortgage when he reassured Rush Limbaugh’s listeners, saying “Trust me”. He said it emphatically, in a way that seemed to convey, “We know *exactly* how she will decide on the key issues that concern you, and you won’t be disappointed.” That implication could cost her more in interest payments than Bush’s statements.
I was struck how Roberts’ testimony included a promise to listen to his colleagues’ opinions, as well as a commitment to try to persuade and work towards a consensus when possible. That seemed consistent with his concept of judicial humility. I don’t think this committee views avowed ideological rigidity as a virtue.
Comment by Bash — October 6, 2005 @ 1:13 am
I think there’s a bit of a disconnect between legal and political thinking here. Readers of this site, and lawyers generally, are deeply concerned about issues like Miers’s qualifications, her independence from the White House, her judicial philosophy, and her likely rulings on legally important issues like the War on Terror.
But politicians worry only about rulings on abortion and gay rights. Given this orientation toward outcomes only, hearings are likely to devolve into both sides demanding proof of how Miers will rule on those issues, and Miers refusing to provide such proof. There will be some back-room manipulations in which Senators on both sides are told what they want to hear, and in the end, they’ll vote to confirm her without any real inquiry into whether she will be a good Justice in terms of integrity, independence, and intellect. Or am I missing something?
Comment by Matt — October 6, 2005 @ 10:45 am
I agree with Lyle that the President has made Miers’s task before the Committee more difficult.
But assuming the nomination makes it out of Committee, I think the confirmation process will be rather rapidly forgotten. I mean, who remembers what questions were asked when Justice Scalia was confirmed?
The idea that Miers has given specific assurances about how she would vote is a chilling one, and I can only hope it isn’t true.
Comment by Marc Shepherd — October 6, 2005 @ 10:50 am
Mier’s “Change” Trap
Lyle Denniston at SCOTUSBlog analyzes the potentially troubling repercussions of President Bush’s endorsement of Harriet Mier’s constancy: Perhaps entirely sincere in attempting to persuade his conservative political allies that Miers would not become …
Comment by ACSBlog: The Blog of the American Constitution Society — October 6, 2005 @ 10:53 am
It seems like it will all boil down to, again, whether Miers is going to overturn Roe v. Wade. In that regard, her testimony that she will reserve judgment on that issue and that she has never discussed that issue with the President, will ring as hollow as Clarence Thomas testifying that he has never discussed the issue with anyone, nor thought about it.
And there is the rub. With his comments the President is telling his base (which includes me)that they need not worry, “I know how she’ll vote,” leaving the Senate to speculate.
If the ends justify the means, then so be it. It just does not sit well with me, especially given the fact that she is obviously not the most qualified person for the job, notwithstanding what the President has said.
Comment by Hirbod — October 6, 2005 @ 11:47 am
Matt is absolutely correct. There is a disconnect between lawyers and politicians. Every politician has an agenda. No decent judge does.
Chief Justice Roberts and I may not agree politically. And I may not agree with particular rulings he will make. But I expect and I am certain that I will receive a fidelity to the law itself from his opinions. I do not have that sense about Ms. Miers.
Comment by Ware — October 6, 2005 @ 3:11 pm