Miers' Weak Case

Bush plumps for a faith-based nominee.

The nomination of White House counsel Harriet Miers to the Supreme Court ignited an unexpected controversy, mainly among Bush supporters. The debate has not focused on Miers' ideology, since no one seems to know much about it. But if Bush's choice for the high court seems lackluster, the political reaction to it has been far more interesting.

The outcry has focused in large part on Miers' qualifications, or lack thereof. She has never held a federal judgeship and has spent most of her career in the private sector (though one could argue that this may bring diversity to the court). Her few writings show little if any intellectual flair.

But the storm on the right has another subtext. Miers is suspected of being too moderate, in particular of not being a reliable vote to repeal Roe v. Wade, the Supreme Court decision that legalized abortion throughout the United States. Some social conservatives are complaining that Bush relies on their political support while doing little to pursue their agenda—the perennial lamentation of the religious right in the Reagan years and under the first President Bush. Many observers believe the Bush administration, in fact, does not want an anti-Roe majority on the court, because striking down Roe would spell turmoil and political disaster for Republicans.

Meanwhile, the administration has tried to reassure the conservative base by stressing that Miers is an evangelical Christian. According to press reports, White House staffers even arranged for an old friend of Miers, Texas Supreme Court Justice Nathan L. Hecht, to talk to some social conservative organizers about her faith and her conversion from Catholicism to born-again Christianity.

This is both unnerving and ironic. In recent years, conservatives have often accused Democrats of improperly making religion an issue in debating judicial nominations and have argued that questioning a nominee's faith-based views on policy issues such as abortion is not only "religious bigotry" but a violation of the constitutional ban on religious tests for public office. Yet now, as George Mason University law professor David Bernstein puts it on the Volokh Conspiracy website, "[T]he president sends his minions to drum up support based on her personal religious philosophy." If Republicans can use Miers' personal faith as a signal to conservative voters that she can be trusted to rule the "right way" on social issues, why can't those who don't agree with that agenda be suspicious for the same reason?

Based on what we currently know, Miers (like John Roberts) seems more of a pragmatist than someone who would legislate her personal morality from the bench. But still, the double standard is blatant.

Besides faith, the other obvious issue is gender. Even many conservatives who have been sharply critical of Bush's pick have stressed that there are many better-qualified women. After selecting Roberts to fill the vacancy left by Sandra Day O'Connor, Bush was under intense pressure to nominate another woman to replace the late William Rehnquist.

Curiously, the nastiest gender-based swipe at Miers so far has come from a liberal feminist, New York Times columnist Maureen Dowd. Dowd calls the women on the Bush team "self-sacrificing, buttoned-up nannies serving as adoring work wives, catering to W's every political, legal, and ego-affirming need." So Bush's male friends are just cronies, but his female friends are described in blatantly sexist terms. Just imagine the reaction if a conservative male journalist wrote something like that about the women in a Democratic administration.

Such "liberal" sexism aside, one can argue that the Miers pick illustrates the worst of affirmative action: identity over qualifications. But does that apply here? There were definitely other, well-qualified conservative women to choose from. The deciding factor in Miers' favor was personal loyalty, otherwise known as cronyism—just as it would have been with Bush's other frequently mentioned possible choice, Alberto Gonzales.

Undistinguished men have been appointed to the Supreme Court before; maybe it's a sign that women have arrived when a mediocre woman has as much of a chance of advancement as a mediocre man. Of course, that doesn't seem like a good reason for Miers to be confirmed. A better reason, perhaps, is that some of the conservatives who are savaging her nomination openly admit that they want a culture war over the Supreme Court vacancy. But, polarized as the country already is, the last thing we need is one more war—even a culture war.