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Miers Critics Won't Admit Litmus Test Susan Estrich What could be more ridiculous than to have the confirmation of a Supreme Court justice turn on her answer to a questionnaire filled out in 1989 when she was running for the Dallas City Council? Does that really determine whether she is qualified to serve on the nation's highest court? It proves almost nothing about her, and everything about her critics. Harriet Miers has yet to speak publicly, but her critics have clearly shown their hand. The opposition to the Miers nomination has nothing to do with qualifications and everything to do with ideology, narrowly defined. Conservatives wanted one of their own, plain and simple - a hard-core, right-wing ideologue. And they're angry because an experienced corporate lawyer doesn't fit that definition. But they can't admit that, because the public won't buy it. So instead, they have challenged her ability, portraying a lawyer with 30 years of experience in breaking through the glass ceiling as incompetent to serve as a justice. Story Continues Below
If this were really about competence, Miers' support for a constitutional amendment to prohibit abortion in 1989 would hardly add to her case. Neither would her church membership, nor the views of her church - other factors that the White House has put forth to quiet her critics. The qualifications argument is simply the cover for her ideological critics, who want to impose a litmus test but won't admit it, and so have impugned Miers' competence, instead. Maybe it's not sexist, although it is difficult to remember any man in recent history who has been treated so shabbily. If it's not sexist, it's still unfair. The White House strategy to "relaunch" the Miers nomination buys right into the conservative attack, seeking to mollify the litmus-test right, rather than challenging its standing to impose it. The positions a candidate takes running for office don't necessarily tell you what her philosophy would be as a judge applying existing law. The White House should know better. The fact that Harriet Miers didn't spend three or four years on a court of appeals, most of whose judges write very few constitutional law cases in any event, doesn't necessarily disqualify her from serving on the high court. Non-lawyers like Dick Morris who are running around screaming for a judge instead of a lawyer should consult their history. There is a long tradition of appointing lawyers, and even politicians, to the court. Chief Justice Rehnquist was a lawyer; Justice Byron White was a lawyer; Chief Justice Earl Warren was a politician. There is nothing magical about sitting on a court of appeals for a few years, as John Paul Stevens, an antitrust lawyer, did, or Stephen Breyer, an expert in administrative law, did. Neither of these brilliant men were constitutional law experts. Nor was Anthony Kennedy or Sandra Day O'Connor herself, who came from a state court that rarely dealt with federal law or federal questions. No one ever suggested that lack of knowledge of federal law disqualified then-Judge O'Connor. Many of my liberal friends can't help but enjoy the spectacle of the Republican civil war over the Miers nomination and the ineptitude of the White House in handling it. Is this what happens when Karl Rove is distracted by the CIA leak investigation? Is this what the White House will look like if Rove is lost to the president? It would be amusing, were a decent woman not in the center, paying the price with her reputation. It is absurd that Harriet Miers must look to the likes of liberal pro-choice women like myself for defenders of her right to fair treatment and an opportunity to prove herself before the Judiciary Committee. I have no reason to believe she agrees with me on anything. But it appalls me to see anyone, especially a woman who has spent 30 years fighting the onus of sex discrimination in our profession, treated so shabbily for reasons that have nothing to do with her qualifications and everything to do with the right-wing agenda. Shame on them. At least they should be exposed for what they are.
COPYRIGHT 2005 CREATORS SYNDICATE INC. Editor's note: Read more on this subject in related Hot Topics:
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