It’s a little over a week since President Bush nominated Harriet Miers to the Supreme Court and the meltdown that ensued has been interesting to watch. The Republican Party is split right down the middle with economic and religious right wingers grilling and chasing Bush spokespeople and beltway heavyweights reduced to sandbox name calling. You might think this amuses me. Well, you'd be half right because the underlying cause for the infighting is more frightening than funny. The civil war among the reactionaries stems from Miers status as a complete and total mystery.
Because Miers has no judicial opinions, authored no articles, and has absolutely no paper trail indicating clearly how she feels about anything we are left to pick at scraps to get some idea of the woman who will replace the biggest swing vote on the Court. And the scraps have been ridiculous. I hear she attends a church where the pastor feels a certain way about abortion. She answered a questionnaire from a gay rights group in a contradictory fashion back in the 80s. There's a rumor she gave to Hilary Clinton. She was head of the Bar Association in Texas that now opposes a Federal Marriage Amendment – does she now? My worst example comes from nursing at the teat of paranoia, also known as talk radio, when I heard a professional conservative yammerer fret “She has a close friend who is in his mid 50s and never married!” In hushed tones we must face the plausible possibility that Harriet has a gay friend. And what does this tell us about potential Justice Miers? Nothing!
Luckily there’s a process that keeps us from appointing people to direct the course of the country for decades without knowing anything about them. She has to go before the Senate Judiciary committee and she has to answer questions that give us an idea of who she is. Take a moment to get your giggles out of course because no one answers any questions at these things. People talk about tough confirmation fights but they don’t ask tough questions. And when the nominee offers up a non-answer, he or she gets a vote anyway.
At the risk of sounding hypocritical I will concede that I thought it was a good thing Roberts didn’t answer questions. But that was because there were comparatively a lot of documents with which to evaluate Roberts and he had a stellar résumé of qualifications. My praise of the silent treatment was based in strategy, not philosophy. The best way for Roberts to win confirmation was to keep from saying anything that would upset his loudest supporters, the religious right, while proceeding through with a record of complex and pragmatic thinking that pretty much assures he will never be exactly what they want. Miers is different. We really don’t know anything about her.
Today, someone whom I’ve previously labeled a litigious fascist, Jan LaRue, released a memo with a list of questions for Miers. In some sort of unholy alliance that I am sure threatens the axis of our orbit I agree with Ms. LaRue on something. It is unfathomable to me why we have to grovel for tea leafs to read when the Constitution requires confirmation. I can’t understand why the Senators on that committee can’t make Miers answer their questions. She has to get a majority so Republicans and Democrats alike should agree on some base level of fact finding before they’ll allow her to advance to the floor.
I know it is imprudent for a potential sitting justice to answer specifics on legal questions that may come before her. We can’t ask a nominee to say how she’ll rule on something before a case has even been briefed and argued. But we can ask something like, “Do you think Roe v. Wade was rightly decided at the time?” That’s a perfectly legitimate question and, considering the amount of power this person will have for life, a necessary one. The idea that the best strategy to fill the court is one of stealth nominees that are rubberstamped is absurd to me. It would be like holding an election for the secret candidate for president or reelecting your representative in Congress based on indications his friend from college might be light in the loafers.
My greatest fear right now is that when it comes time for the confirmation hearings we’ll discover that all the thunder sounded really scary but it was just hot air mixing with cold rhetoric and Harriet Miers will, in fact, remain an unknown quantity right up till her first consent or dissent. And I would hope, regardless of one’s political persuasion or judicial philosophy, we could all agree this is a bad way to proceed. Having a mystery man, or woman, is a sure fire way to assure we’ll have nothing to object. By default, does that mean she commands our unqualified support?
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