I think these two
are miffed because Bush didn't select a member of their in-crowd.
Bork was rather bald-faced about it, when he explained to CNN
that Miers' nomination was "a slap in the face to the conservatives
who have been building a legal movement."
It's not
enough that the National Law Journal named Miers as one
of America's 50 most influential women lawyers -- before she worked
in the White House. In the world according to Bork, she's supposed
to be a member in good standing of a select club of conservative
ideologues/legal scholars.
Let me be
clear on this: I am not saying that anyone -- Democrat or Republican
-- has an obligation to vote for Miers. I have questions, too.
Miers had an odd flap with Sen. Arlen Specter, R-Pa., over the
right to privacy. She said he misunderstood what she said about
the Griswold decision, which the high court relied upon
when it legalized abortion. That's not good. A justice cannot
afford to be misunderstood.
Misunderstanding
No. 2: Answering a Senate Judiciary Committee questionnaire, Miers
wrote that, when addressing a lawsuit on the Voting Rights Act
as a Dallas city councilwoman, "the council had to be sure
to comply with the proportional representation requirement of
the Equal Protection Clause." The Los Angeles Times
ran a story in which legal scholars scoffed at her take on proportional
representation and the law.
Brett M. Kavanaugh,
Miers' successor as White House staff secretary, told me over
the phone, "Some people read into that a different meaning
than was clear in the context of the case she was describing."
That is: Miers was referring to one person, one vote.
Again, a justice
cannot afford to be misunderstood. That said, Republican senators
at least should hear out Miers. Let them listen to her testimony
before the Judiciary Committee before they decide if she is or
isn't qualified to serve on America's top court.
Besides, there is
something refreshing about Bush's decision not to pick from a
prescribed list of appellate judges. Brad Blakeman, a Washington
lobbyist who worked with Miers in the White House, noted that
if the Founding Fathers had wanted only judges to serve on the
Big Bench, they could have written that into the Constitution
-- except they didn't.
Blakeman believes
the Framers "felt that there should be diversity in the court,
and they gave the president wide discretion in picking someone
who the president felt would complement the court." Miers
fits that bill. She's been elected to the Dallas City Council.
She served as president of the Dallas Bar Association. Methinks
she might bring a real-world perspective to the tight little universe
of legal lingo and black robes.
Those great
legal minds make mistakes -- witness the bonehead Kelo
decision that expanded the definition of "public use"
so that cities can seize homes from law-abiding taxpayers under
eminent domain, then hand them over to big corporations.
I have heard from
conservative readers who tell me that Bush owes them the judges
they want. Wrong. Bush beat Kerry nationally by about 3 percentage
points. He's not king. He needs a nominee who will be approved
by the Senate. He can't win with a Bork think-alike.
Conservatives ask:
Why elect Republicans if we don't get the judges we want? Answer:
So that you'll get judges you can live with.
If, as some insiders
suggest, Bush does have to pull the Miers nomination, I have this
bit of unsolicited advice: Bush should nominate a pro-choice Republican.
Until now, he has
given the anti-abortion crowd everything they reasonably could
expect. And this is how they say thank you. If this is how they
behave when they think they've been slapped, they should be slapped
silly.
