Last week, after noting that President Bush opined that "diversity" was one of the strengths of the U.S., this column predicted the criteria that he would use in his selection of a nominee to fill the opening left by retiring Justice Sandra Day O'Connor:
"Indeed, diversity is one of the strengths of the country, so there's little doubt that Bush will nominate someone from that diverse group that includes white or Latin fundamentalist Christian men or women who oppose abortion rights, support PATRIOT Act-like encroachments on civil liberties, oppose extending (or even enforcing) the Freedom of Information Act, support extensions of the Commerce Clause into states-rights issues that affect 'morality' – and who are friendly with or a relative of some already-high-ranking member of the administration or its favored lobbyists."
"Shouldn't be too hard to find someone in that group, should it? And of course, whoever it is will have to have a paper trail as short or shorter than John Roberts."
Meet Harriet Miers, an attorney who has represented Bush both in his private and official capacities off and on for almost 20 years, and who is currently his White House Counsel, having succeeded Alberto Gonzales to the post when Gonzales became Attorney General.
So let's tick off her qualifications:
•White
•Fundamentalist Christian (see below)
•Sixty-year-old woman who looks like anybody's wrinkly mom, which is bound to have traction with the public, and probably senators as well (Notable, however, is the fact that in 1996, Bush described her as "a pit bull in size 6 shoes.")
•Opposes abortion rights
•Friendly with – hell, employed by! -- a high-ranking member of the administration
•Paper trail shorter than John Roberts'
That last point is particularly important, since during the Roberts confirmation hearings, one set of documents the White House refused to provide to senators was Roberts' internal memos written when he served as assistant White House Counsel during the early '80s, citing both attorney-client and executive privilege.
One could easily argue that Bush is an employee of the United States, and hence of the American people, and therefore should not be able to invoke attorney-client confidentiality as an excuse not to provide the documents – but since that issue was never raised in court, it seems likely that Bush will also refuse to provide whatever memos Miers wrote while in the Counsel's office, and certainly whatever communications the two had when Miers represented Bush in her private legal practice. This tactic should effectively bring her paper trail down to near zero, leaving citizens and senators alike with few official documents to go on in assessing what her agendas are and where her loyalties lie.
"You're not entitled to a paper trail," said Sen. Arlen Specter (R-Pa.) unhelpfully. "You're entitled to whatever trail there is. You can't create papers if there aren't any papers there."
Certainly, that was one enormous point in Miers' favor when Bush (or, more likely, Rove) was thinking about who to nominate, but all the more reason for senators to press her on her views of social issues.
And a miniscule paper trail doesn't mean the evidence isn't there.
Consider the fact that during and after Miers' tenure as Bush's private attorney, he has given her a continuing string of jobs, from the head of Texas Lottery Commission (1995-2000), to presidential staff secretary (2001), to Deputy Chief of Staff (2003) to White House Counsel (current). Is there any reason not to think that the next knot in that string is Supreme Court Justice?
"In the White House that hero worshiped the president, Miers was distinguished by the intensity of her zeal: She once told me the president was the most brilliant man she ever met," wrote former Bush speechwriter David Frum. He also reportedly described her as "unwaveringly loyal" to Bush, but those words were removed from Frum's original posting on the subject.
Leaving aside the absurd view that George W. Bush could possibly be "the most brilliant man she ever met," is Miers "unwaveringly loyal" to Bush?
"Yeah, I'm sure she's that," said Roger Albright, a Dallas attorney who's come in contact with Miers numerous times when she served on the Dallas City Council.
Describing her as being in the "O'Connor mold," Albright remarked, "I am pleasantly surprised that she's the nominee. By comparison, I mean, it could have been Priscilla Owen, it could have been one of the crypto-fascists on the Fifth Circuit, so by comparison, we're in pretty good shape."
Possibly. But USA Today reporter Bill Nichols described her in an article as "active at her church, Valley View Christian in Dallas, for 25 years. Longtime friend Nathan Hecht, a Texas Supreme Court Justice, says Miers has given "hundreds of thousands of dollars" to the church over the years."
The Valley View Christian Church lists its tenets on its website.
"Our beliefs are not innovative," begins the section titled "What We Believe at VVCC." "Anyone familiar with historical Christian teaching will find these statements fall well within the boundaries of evangelical theology. (Evangelical means theology derived from the evangel, or the Gospel. In other words, it's biblical theology rather than speculative theology or theology rooted in tradition.)"
The section goes on to note that, "We believe the Bible to be the only infallible, inspired, authoritative Word of God. As such it is our final authority for all matters of faith and Christian practice." It also says, "We believe that salvation - forgiveness of sins - is available only by the grace of God through the blood of Jesus Christ." Fairly basic Christian doctrine, to be sure, and how VVCC advises its parishioners to put those beliefs into practice is certainly important, but taken at face value, anyone who follows the VVCC's stated beliefs could easily be a fundamentalist – just the sort of person Bush's supporters would like to see on the Supreme Court.
"Harriet is an outstanding individual," former Texas Supreme Court Justice Raul Gonzalez told a reporter for Focus on the Family. "She is a born-again Christian and goes to an evangelical church in Dallas. She is a very, very compassionate and able person."
The religio-reactionaries would also like to see someone severely limit or take away altogether a woman's right to abortion, and Miers, having served as the first woman president of the State Bar of Texas, was active in a 1992 battle within the American Bar Association (ABA), arguing vehemently (but fortunately unsuccessfully) against a resolution supportive of abortion rights. (She was never directly quoted as opposing Roe v. Wade specifically, but that she considered it inappropriate for the ABA to take any position at all on the subject.)
Miers is, of course, pro-business. She was the first woman president of Locke, Purnell, Rain & Harrell, a Dallas law firm that then had about 200 lawyers, and later, when that firm merged with a similar-sized Houston law firm, Miers became co-managing partner of the result of that merger, Locke Liddell & Sapp, LLP. Among the firm's clients were Microsoft, Walt Disney Co. and SunGard Data Systems Inc.
In 1989, Miers was elected to a two-year term as an at-large candidate on the Dallas City Council, but decided not to run for re-election when her term expired.
And, of course, as has been widely been reported, Miers has never been a judge, and therefore doesn't know first-hand the feelings of responsibility attendant to, for instance, sentencing a defendant to the death penalty.
As for her years in the White House in various jobs, people describe her as "low-key" and "a relentless workaholic," but she's rarely expressed her personal views in public – just the sort of person who could easily slip into one of the nation's most important jobs without those whose duty it is to determine whether she's qualified for it knowing much if anything about how she thinks.
"It could have been a lot worse," said Sen. Charles Schumer (D-N.Y.), who serves on the Senate Judiciary Committee, of Miers' nomination. Certainly – but it could have been a lot better, too – and the idea that she is "the best-qualified person in the country," as one reporter asked, would be laughable if the President of the United States hadn't so readily agreed with it.
"I picked the best person I could find," said Bush. Obviously, he doesn't get out much and/or his eyesight is failing rapidly.
"I think we may have averted a crisis in the Senate," opined Sen. Dick Durbin (D-Ill.), the assistant minority leader. "I think the president heard loud and clear from every Democrat that he had to avoid the more extreme judges that had been named to lower courts, and he did that."
In fact, nobody knows that to be the case, least of all Durbin. But his view is shared by many.
"I threw out a kind of informal poll of local lawyers who know her, who indicated that she is not some right-wing religious kook," said one Dallas attorney who requested anonymity. "She's very pragmatic and very sensible. She was a member of the city council and did not have, as far as they knew, an agenda, to say that 'I'm going to champion these causes to no end'; that just isn't her, according to everyone I've talked to who know her. One lawyer who knows her very well said specifically, 'She is a replacement for O'Connor.' And he meant it as, she is a substitute, not a Scalia clone."
"She is certainly conservative, but I think that she would be good on, for example, gender issues," opined Roger Albright. "I think, when all the dust settles, she's probably very – choice is always a huge issue, but my recollection is, when she was on the city council, she was certainly not averse to sexual orientation issues, gender issues as far as city employees, that sort of thing, so I'm thinking that she is probably going to be fairly responsive to those issues. To my recollection, I don't think she's ever been married. She has been, to my recollection, involved in a long-term hetero relationship for a half-dozen years if not more. I think she's pretty open-minded. She and I never crossed swords at all, either as a lawyer or on city council, regarding adult issues."
Even religious reactionaries, though, are expressing their doubts about the nominee.
According to BBC News, Sen. Sam Brownback (R-Kan.), a conservative ideologue, has said he would vote against a nominee who was not "solid and known" on cultural issues like abortion, same-sex marriage and religion in public life. Therefore, Brownback's vote will be more revealing than anything he might say about the nominee.
"We give Harriet Miers the benefit of the doubt because thus far, President Bush has selected nominees to the federal courts who are committed to the written Constitution," said Jan LaRue, chief counsel for the religio-reactionary Concerned Women for America. "Whether we can support her will depend on what we learn from her record and the hearing process."
"President Bush has long made it clear that his choices for the U.S. Supreme Court would be in the mold of current justices Antonin Scalia and Clarence Thomas," reflected Tony Perkins, head of the pro-censorship Family Research Council. "We have no reason to believe he has abandoned that standard. However, our lack of knowledge about Harriet Miers, and the absence of a record on the bench, give us insufficient information from which to assess whether or not she is indeed in that mold."
"I know of nothing in Harriet Miers's background that would qualify her for an appointment to the Supreme Court," said Roger Pilon, founder of the libertarian Cato Institute's Center for Constitutional Studies.
