THE CONTROVERSY over Harriet Miers' now-failed nomination is widely regarded as just another blow to President Bush and the Republican Party. The Miers episode, however, will have more significant impacts than just on the popularity rating of Bush and Republicans. The key effects of her failed nomination will be on the state of the American judicial system. With partisanship and hostility in the nomination process reaching dangerous levels, the time has come to reexamine how the American judicial system operates. Bush is serious about effecting permanent change on the Supreme Court, but he does not appear to understand how difficult this is in the current political setting. The failure of the Miers nomination presents a golden opportunity for the president to reassess his strategy for reforming the Supreme Court.
In the past three decades, the role of the Supreme Court in American politics has become a lightning rod of controversy. The Supreme Court had been involved in controversial decisions from its beginning, overturning or upholding actions of the government based on their constitutionality. In the late 1960s and 1970s, however, the court began to behave in an entirely new way: It moved beyond simply testing constitutionality to making national policy.
Roe v. Wade in 1973 is the best example of the court's new role. Had Roe v. Wade merely ruled that the Constitution protected a woman's right to abortion, it would have been controversial. The court, however, ruled that states could ban abortion during the third trimester (except in cases where the health of the mother is at risk), but not during the first two. One can argue over whether this was a good policy, but the fact is, the Supreme Court's decision had stepped into a policy-formulating role. Since then, the Supreme Court has become the final authority in America on issues from the Pledge of Allegiance to campaign finance reform. The Supreme Court has virtually become the third house of Congress, with rulings full of small, painstakingly detailed modifications to existing law.
Studying the reaction to Miers, one can see the how the Supreme Court's intrusion into policy formation has affected the nomination process.Liberal interest groups demanded that a nominee pledge to uphold Roe v. Wade, while conservative groups demanded the opposite. Through campaign donations, these groups exerted a huge influence on the Senate's consideration of Miers. The Senate's behavior in the judicial nomination process has gone far beyond the constitutional description of "advice and consent." The confirmation hearings for Robert Bork in 1987 are generally regarded as the turning point in the Senate's role. With vicious ad hominem attacks, liberal senators managed to prevent the confirmation on a nominee the American Bar Association had rated "extremely well-qualified."
President Bush has attempted to avoid a repeat of the Bork nomination by using what many call the "stealth strategy." In John Roberts and Harriet Miers, Bush has chosen nominees with no history of controversial statements. That way, he seemed to believe, conservatives can be placed on the Supreme Court without giving Democrats an excuse to object to them.
However, with Miers, the fatal flaws of this strategy have been shown. Her nomination was not able to gather the same level of support that John Roberts received, for reasons that should have been obvious to Bush. John Roberts was unique as a well-regarded judicial conservative without a history of controversial statements. Miers, on the other hand, may have held conservative views and avoided controversy, but she also had no judicial experience, or even any experience dealing with constitutional law. It appeared that the main reason Bush chose her was their close friendship, and this apparent cronyism did not exactly endear her to liberals or conservatives. Bush has attempted to bring about a conservative shift in the court without a fierce political battle, a goal which is impossible in the current political climate. The president must understand that powerful, well-organized political movements exist to oppose nominees who wish to return the Supreme Court to its traditional constitutional role.
Most Supreme Court justices have moved far beyond their constitutional role, formulating policy rather than only protecting the Constitution. The Miers nomination ought to serve as a warning to the president and the conservative movement about the folly of trying to effect major change in the Supreme Court without a fight. It is time for the president to decide which course he will take: avoiding the hazards of a political fight with the "stealth strategy," or to appoint Supreme Court justices who will follow the Constitution.
Stephen Parsley is a Cavalier Daily Viewpoint writer.
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