For the next several weeks, both Republicans and Democrats in the U.S. Senate will be seeking to answer one simple yet extremely convoluted question: Who is Harriet Miers? Superficially, of course, Harriet Miers is the attorney chosen yesterday by President Bush to take the Supreme Court seat vacated by the retirement of Sandra Day O'Connor. However, Miers' truly relevant identity is political and judicial. What sort of justice will Miers be, and moreover, what does her nomination say about the president's perception of his current political position?
The question of Miers' judicial identity is of the utmost import as her confirmation has the potential to fundamentally alter the ideological balance on the Supreme Court bench. While newly confirmed Chief Justice John Roberts takes the place of the dependably conservative William Rehnquist, Sandra Day O'Connor was a moderate, wielding a swing vote in cases dealing with ideologically divisive issues like abortion. Her replacement, then, will have the power to either preserve the status quo or shift the Supreme Court sharply to the right.
So will Harriet Miers maintain the Court's ideological makeup or tilt the bench right? Perhaps the only thing Republicans and Democrats have agreed about since March 2003 is that Miers is a wild card. She has no experience as a judge, and so has no record of decisions from the bench. She is not outspoken on any "litmus test" issue. In short, nobody outside the White House knows quite what to think, so both sides are playing it safe, speaking flatteringly of Miers personally but refusing to commit to her as a Supreme Court Justice.
While it is impossible to divine whether Miers will join Clarence Thomas and Antonin Scalia as leaders of the movement to remake the Court in the image of the extreme right, it may be possible to draw some conclusions about her by reconstructing the process that brought the president to choose her.
The most straightforward explanation for the president's choice of a justice so strikingly inoffensive to liberals is that he has acknowledged his political weakness. With poll numbers in the low 40s, Hurricane Katrina, the Iraq War, and high gas prices igniting popular discontent, Bush is in the worst political position of his presidency. Add the numerous scandals currently hovering above the Republican Party, and Bush is looking positively vulnerable. In this context, the nomination of Harriet Miers is the very first real sign of bipartisan appreciation and cooperation of Bush's presidential career. Very vocal protests from the conservative media, especially National Review, as well as Harry Reid's alleged pre-nomination support for Miers would seem to lend this interpretation credibility.
Of course, to the understandably skeptical reader, the first interpretation is not only straightforward but na??¶?. President Bush, like a rabid dog, generally becomes aggressive when faced with adversity, so this must be yet another attack, albeit a veiled one. One theory, supported by statements made by fundamentalist Christian leader James Dobson, is that Bush has secretly assured his political base that Miers is in fact a staunch conservative. The fact that she has no record will simply expedite her confirmation, as it expedited Roberts' confirmation. That Miers once fought to end the American Bar Association's support for abortion rights is strong evidence that she is a candidate in whom Dobson, Pat Robertson, and Ralph Reed will be well pleased.
The president could also be trying to hoodwink both cultural conservatives and Democrats. In what could be dubbed the "Billy Beane Theory," the president may be reacting to his low supply of political capital by advancing his agenda on issues that he has determined to be undervalued by the political market. The firestorm that would result from a fight over a nominee radically to the right on issues like abortion and gay rights would consume the Bush administration. However, a nominee who is a staunch supporter of the rights of large corporations, as Miers is, would probably be able to sneak in under the radar, in much the same manner as the Bankruptcy Act slid through Congress in the spring.
Finally, and most dangerously to the public in general, Miers is an extremely close confidant of the president. This may make her more likely to support him in cases of executive power and privilege, such as those pertaining to prisoner abuse and detention. It also may make her no more qualified to sit on the Supreme Court than Mike Brown was to run FEMA.
Unfortunately, no one outside the White House can do more than guess at which of these scenarios, if any, played itself out inside George Bush's noodle. Harriet Miers is as yet nothing more than a gigantic question mark. In order to protect the Constitution from a person who may or may not be qualified to interpret it, she must be thoroughly vetted by senators on both sides of the aisle. And this time they should make sure their questions are answered.
