October 5, 2005
I'll Wait And See Where Harriet Miers Stands on the Constitution
By Mark Davis

The din of protest was not surprising after President Bush named Harriet Miers as his Supreme Count nominee yesterday.

What was surprising was its source. The loudest naysayers were launching their complaints straight from the heart of Mr. Bush's base. A large, vocal chunk of conservative America, as Weekly Standard editor Bill Kristol put it, is "disappointed, depressed and demoralized."

•Disappointed because Ms. Miers is not a clear move toward the Scalia/Thomas mold Mr. Bush promised for nominees;

•Depressed because the president did not seek a defining, principled battle over what kind of nominee belongs on the court;

•Demoralized because it could foretell capitulation on other issues.

This was an enormous buzz kill for me by mid-morning, when I was still thinking how cool it would be to have a Dallas woman on the Supreme Court.

But the issue of her worthiness is a far deeper matter, so I dived into conversation with a wide range of people, some of whom know her.

I spoke with Sen. John Cornyn, who properly pointed out her trailblazing legal career. But then I heard the views of those who salute her résumé as an attorney but wonder whether that is the same as a glowing indicator for judicial temperament.

The central issue of her confirmation will be her view of the Constitution. Is it a document to be pored over for signs of original intent or a general road map that changes with the times?

I heard from a man who said he had known her since her SMU days, roughly four decades of familiarity. He said he felt she shared his passion for strict constructionism.

The president has known her for a long time as well, and one would think he would not name someone who was a huge question mark on such basics. But you would think the FEMA director would have emergency management experience, too.

I know – borderline cheap shot. But there is a valid question over whether loyalty blinds this president to some of the shortcomings of those around him.

Maybe it does at times. That's human. But we're frying even bigger fish than hurricane recovery here. Like new Chief Justice John Roberts, Ms. Miers could be looking at a seat on the nation's highest court for most of the first half of this century, deciding issues of rights and law that could stick for decades more.

I understand some nervousness from those who wonder whether Mr. Bush has his eye on the ball. His war resolve has been splendid, but conservatives have recoiled at his embrace of horribly flawed campaign finance reform, a plan that looks a lot like amnesty for illegal aliens and a continually expanding federal budget.

But I'm going to deploy what seems appropriate: a generous helping of benefit of the doubt, which I may suspend if evidence mounts that I have been had.

Cries of betrayal are already mounting, but they seem premature. I believe a lot of people are simply bitter that Mr. Bush did not name a bedrock originalist – a move that would have seemed to thumb his nose at critics pelting him with the seasonal pebbles of bad war news, low poll numbers and a few scattered scandals.

I confess I would have enjoyed a battle, watching Democrats try to discredit a stellar nominee whose worst sin is a track record of trying to figure out what the Constitution actually says and what its writers actually meant.

But you know what else I'll take? Justices Roberts and Miers, who may well turn out to fit that Scalia/Thomas mold quite well. These two justices are the end result of what, after the war on terror, is the most important decision Mr. Bush will make as president. I will conclude that he has blown it only if their bench behavior is a disappointment.

For those of us willing to take the president at his word, I hope what unfolds is an uplifting – not disillusioning – process. And I hope I will be delivering rather than receiving a big, friendly I-told-you-so.

Mark Davis is a columnist for the Dallas Morning News. The Mark Davis Show is heard weekdays nationwide on the ABC Radio Network. His e-mail address is mdavis@wbap.com.

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