Crony Constitutionalism

The nomination of White House counsel Harriet Miers to fill the seat of retiring Justice Sandra Day O'Connor is a measure of George W. Bush's unprecedented political weakness. With the Iraq debacle, the Katrina disaster and the DeLay indictments, ambitious Republicans are now distancing themselves from the White House. The O'Connor vacancy presented a dilemma: On the one hand, appointing a judge bearing the activist right's stamp of approval on abortion, the environment and other contested issues would court not only unified opposition from Democrats but defection by moderate GOP senators. On the other hand, appointing a genuinely distinguished moderate jurist, legal scholar or political leader would insure a far-right revolt.

Bush's solution: Appoint a personal adviser with few apparent qualifications. Miers has never argued a Supreme Court case, published a significant law-review article or shown in her career any interest in constitutional issues. It's true that historically Justices have carried diverse résumés, and until recent years many came to the Court without experience on the bench. But comparisons to Earl Warren or William Rehnquist do not flatter Miers, whose "leadership" consists of managing a law firm's representation of Disney and Microsoft and keeping Bush clear of fallout from the Texas lottery scandal and his National Guard desertion.

There is still much to learn about Miers, but it's already clear that her nomination is an act of crony constitutionalism at a time when Bush's agency-packing schemes have led FEMA and Homeland Security to disaster. As with Chief Justice Roberts, Bush's main interest seems to be an Associate Justice friendly to his expansion of executive powers. As White House counsel, Miers is surely implicated in the profound civil liberties and presidential-powers cases now wending their way through the courts. The Judiciary Committee must aggressively seek the tenor of her advice on these matters--if for no other reason than to protect the Supreme Court institutionally from a conflict of interest, since cases in which Miers has given advice will probably be heard by the Court.

It also must be said that while Miers has no track record on constitutional matters, she is hardly a cipher. Despite unhappiness in some corners of the right with her appointment, she appears to be a committed social conservative, voting against legalizing gay sex during her brief stint on the Dallas City Council, donating to Texans United for Life and working unsuccessfully to turn the American Bar Association away from its support for abortion rights. As president and managing partner of Locke Liddell & Sapp, she oversaw a law firm that worked assiduously for Texans for a Republican Majority and was forced to return an illegal contribution to Tom DeLay's defense fund.

Miers's nomination must not be permitted to survive with the kind of cheerful evasion that John Roberts brought to his confirmation. Her scant qualifications and her legal career deserve the closest scrutiny. So does her White House performance: Bush's vow to refuse to turn over documents will run headlong into the Senate's critical need to learn something about the nominee's thinking on weighty constitutional issues. Bush's political capital continues to erode, and Democrats who played their cards close to the vest on Roberts now have a chance to stand up for competence, civil liberties and the Supreme Court itself. As the President likes to say about schools: It's all about standards.

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