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.
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