Full-Court Press


When George W. Bush was running for office in 2000, he repeatedly told audiences that Clarence Thomas and Antonin Scalia were his ideal Supreme Court justices -- hardcore social conservatives whose view of the US Constitution and Bill of Rights was rooted somewhere in the late 18th century.

But now that he has had his opportunity to make his appointments, one has to wonder where he plans to take the court.

First, he appoints John Roberts to the bench to replace Associate Justice Sandra Day O'Connor, then elevates his appointment to chief justice after Chief Justice William Rehnquist died in early September. Roberts, a longtime confidant of the president connected to a host of Republican causes, was confirmed in time to take his seat in October.

Following Roberts's confirmation, Bush appointed another close confidant, Harriet Miers, who is from all appearances a blank slate. She has an impressive resume, but little in the way of a track record and no judicial experience. Not that judicial experience should be a prerequisite; as the president has pointed out, more than three dozen justices have served without having served on the bench. But, as the Los Angeles Times pointed out in an Oct. 4 editorial, choosing a non-judge "should be done only for someone truly extraordinary -- a leading scholar, say, or a thoughtful senator."

Does Miers meet that standard?

Not according to the Boston Globe.

"All in all," it wrote Oct. 4, "Harriet Miers's work experience makes her one of the least qualified nominees for the Supreme Court in many decades" and places "Miers in a position of having to prove her case to the Senate."

As Bush's choice to replace O'Connor, who essentially served as the court's swing vote, sometimes siding with the court's liberal wing, sometimes with its conservative one, the Miers nomination has the potential to shift the balance on the court.

This is why her appointment has come under fire from conservative groups who were seeking a new Scalia on the court. And both sides have accused the nomination as another example of Bush appointing his friends and cronies to positions of influence, an approach that most recently has had devastating effect in the Gulf Coast region.

At stake here is the future direction of the court and, potentially, its independence. Will Miers view cases with an independent eye, or will she defer to her patron, the man who brought her to Washington? It's a fair question, I think, especially given the court's interference in the 2000 election.

That makes Miers's impending confirmation hearing -- which had not been scheduled as of this writing -- so important. Both parties failed the nation in questioning Roberts, allowing him to sidestep questions that he should have been forced to answer with the threat of a no vote hanging over his head.

Close review of Miers -- and all future court nominees -- by the Senate is vital to the future of the nation. The Senate, despite what some conservatives say, has an equal stake in the process, a responsibility under Article II, Section 2 of the Constitution to provide advice and consent on the nominee before his appointment is made final.

The Senate can withhold its consent -- as it has 21 times in the 216 years that the Constitution has been in place. The Senate has nixed a dozen nominees, including Robert H. Harrison, nominated by George Washington to the first Supreme Court, and forced another nine to be withdrawn.

Now that Miers's name has been put into play, it is up to the Senate to try to determine who she is and how she might function on the court. Admittedly, it is difficult to know exactly what a nominee will actually do once on the bench, as the trajectory of Justice David Souter from mild conservative to one of the more liberal members of the court attests.

And while I would like to see the second-coming of Justices William Brennan or Thurgood Marshall -- arguably the two most liberal justices in history -- I also know that with President Bush in the White House I can just forget about that. But what we can hope for is a justice who fits within the American political mainstream, someone similar to Justice O'Connor.

At least until we can put a progressive in the White House and/or vanquish conservatives from the Senate.

Hank Kalet is a writer and newspaper editor in New Jersey. Email

From The Progressive Populist, Nov. 1, 2005

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