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The Harriet Miers Nomination: How It Shows President Bush Has Turned Full Circle

Thursday, Oct. 06, 2005

It is difficult to remember the President Bush who campaigned before the 2000 election. There has been so much water under the bridge - Bush v. Gore, 9/11, the Iraq war, and Hurricane Katrina - that which happened only five years ago seems like eons in the past.

In light of the President's nomination of his long-time friend and advisor, Harriet Miers, for the Supreme Court, though, it is worth looking back. When one does, I will argue, it would appear that Bush has come full circle.

Bush's Early Appeal: As a Pragmatic, Centrist Uniter

As I noted in a prior column, part of Bush's early appeal was the notion that he would bring Republicans and Democrats together, as he did in Texas as governor. Before the 2000 election, the country was deeply divided at the end of the Clinton presidency and the impeachment trials, and the idea that a bipartisan from outside the Beltway would lead the country was very appealing.

Bush also appeared to be much more of a moderate than he does today. He was not vocally pro-life in Texas, and although he backed a Texas faith-based initiative, that was originally President Clinton's idea (a fact forgotten amazingly often), so that support for "charitable choice" hardly made him a right-wing conservative.

Then, Bush looked like a pragmatist and a centrist. Some might argue the moderate appearance was packaging used to obtain the Presidency, but one can usually tell a President's true colors in a second term, when no election shadows his every move. It is telling, then, that both of the President's Supreme Court appointments look a lot more like the choices of the Bush who campaigned in 1999, than the later Bush who became a mirror for a right-wing Christian agenda.

In Texas, Bush worked well with both parties and worked to find solutions that were pragmatic. As someone who was born and raised in Dallas, I can tell you that he was a Texan working with Texans, and he had a vision of coming to Washington to be an American working with Americans. Of course, that may have been a naÏve vision. In any event, Bush v. Gore returned the country to its ideological divide, and began a journey that took him relatively far from his more moderate and conciliatory political roots.

At the time, Bush seemed to be more of a moderate than the Tony Perkinses of the Republican Party would have him be. And he was also someone who looked like he would be strong on states' rights (He was the governor of the second-largest and most independent-minded state, after all). Given his business and oil experiences before politics, it seemed he'd also work hard to foster a free market. Politically, he really was not far from Justice O'Connor in many ways - or from the string of moderates he paraded across the Convention stage during the 2004 election.

Miers, Too, Is Likely to Be a Pragmatic, Centrist Uniter, If Confirmed

There is not much on the record regarding Texan Harriet Miers, except that it is quite clear she is a pro-business choice in the mold of Chief Justice John Roberts. The bulk of her legal career has been spent as a practicing business lawyer representing big companies like Microsoft.

Thus, as with Roberts, this appointment shows Bush's close ties to business and to a traditional, Republican free market philosophy. The influence of the religious right on the Republican Party has received far more press attention, but that has not diminished the power of business interests within the Republican fold.

Miers also may be a strong Justice on states' rights issues. She is a reminder of Bush's earlier promise, when it seemed he would be likely to back states' rights or federalism. As I have discussed in a recent column, the Bush Administration has abandoned these principles all too often, and especially in the Raich litigation over California's medical marijuana laws and the pending case at the Supreme Court addressing Oregon's assisted-suicide law.

Miers served both on the Texas Lottery Commission and the Dallas City Council. This kind of local and state experience is invaluable at the Supreme Court, especially on this particular Court, where Justice O'Connor was the sole voice of state political experience. It promises that Miers will be more knowledgeable about state and local needs, less deferential to overreaching exercises of federal power, and likely more pragmatic, than if she had lacked this experience - and probably also more so than the other Justices.

Finally, Miers should remind us, too, of the Governor Bush that was willing to work with those on both sides of the aisle. Senate Democrat Harry Reid has spoken up on her behalf. And her $ 1,000 donations to Al Gore and the Democratic Party - a fact that has arch-conservatives in apoplexy - shouldn't be interpreted as revealing left-wing leanings, but rather as illustrating her ability to work both sides of the political spectrum.

Would Miers Vote to Overturn Roe? It's Hard To Say

Of course, all of this is relatively bad news for those on the far right end of the Republican Party, who have placed overturning the already toothless Roe v. Wade and blocking gay rights at the very top of their Supreme Court wish list. They are crying that this is a betrayal of Bush's promises to them (as opposed to the very different promises he made when he first campaigned, and when he put on a Convention in 2004 designed to appeal to moderates).

Perhaps Miers is with them on these issues; she did call for an ABA members vote regarding the organization's pro-choice position on abortion. But her point, it seems, was simply that such a controversial position should not be adopted by an organization whose point was to represent all of its lawyer members -- at least without clear member support, as represented by a vote, for that position.

In any event, she is clearly not an ideologue who has devoted her life to the goal of overturning Roe.

Miers's religious affiliation also portends a non-dogmatic approach to life. Her church, the Valley View Christian Church in Dallas, includes the following description of its beliefs:

"We try not to be dogmatic about matters on which believers hold divergent views. Our core beliefs are centered in Christ and His message as supported by Scripture. More obscure doctrine, as well as controversial issues about which the Bible is silent,are left to believers to sort out on their own. On these issues we take no official/dogmatic position."

This appears to be a church that belongs to the new wave of churches - those that are more focused on each person's "search for significance and purpose," than on religious doctrine or politics.

Like Justice O'Connor, Miers Broke Barriers For Women

Miers also is obviously an independent woman who has put her career first. She is not married and has no children. This sort of personal independence puts her more in the mold of a Justice Souter, than that of a Justice Scalia.

Miers defied society's expectations regarding marriage and family - as has Justice Souter. Each charted his or her own course.

What will happen if (and when) Miers's personal independence is combined with the independence of the judiciary? I think one can expect that she will not follow political guidelines, but rather, keep her own counsel and make her own, independent decisions. One can only wait in tense anticipation to see what Senator Santorum will have to say about having such a woman on the Supreme Court!

Miers also shares Justice O'Connor's experiences of being the "first woman" in a number of circumstances. She is at the tail-end of the generation that envisioned women in high positions of power, and worked hard to push through barriers. As with Justice O'Connor and Justice Ginsburg, Miers is likely to be very impatient with any attempt to argue there was no meaningful gender discrimination in the past, that there should be no heightened constitutional scrutiny in cases of gender discrimination, or that diversity is unimportant.

In the end, of course, these background facts will not wholly determine Miers's judicial philosophy, but are only tantalizing hints regarding someone who is in fact a "stealth" candidate. But given her long, close friendship with President Bush and his actual political roots, it should not be surprising that Democrats and moderates have praised her nomination. At least with respect to the Supreme Court, President Bush appears to have turned full circle and proven to be the man he seemed to be as candidate five long years ago.

Marci A. Hamilton is the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns on church/state issues - as well as other topics -- can be found on this site. Her email address is Professor Hamilton's most recent work is God vs. the Gavel: Religion and the Rule of Law (Cambridge University Press 2005).

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