October 25, 2005
Slap Them Silly

By Debra Saunders

Now, Republicans are "borking" one of their own. Robert Bork himself, the Reagan Supreme Court nominee who was rejected after the Dems barraged him with highly personal attacks, has attacked Bush's nomination of Harriet Miers to the Big Bench as "a disaster on every level." Conservative commentator Patrick J. Buchanan told CNN that Bush "gave conservatives a wet mitten across the face with this nomination."

I think these two are miffed because Bush didn't select a member of their in-crowd. Bork was rather bald-faced about it, when he explained to CNN that Miers' nomination was "a slap in the face to the conservatives who have been building a legal movement."

It's not enough that the National Law Journal named Miers as one of America's 50 most influential women lawyers -- before she worked in the White House. In the world according to Bork, she's supposed to be a member in good standing of a select club of conservative ideologues/legal scholars.

Let me be clear on this: I am not saying that anyone -- Democrat or Republican -- has an obligation to vote for Miers. I have questions, too. Miers had an odd flap with Sen. Arlen Specter, R-Pa., over the right to privacy. She said he misunderstood what she said about the Griswold decision, which the high court relied upon when it legalized abortion. That's not good. A justice cannot afford to be misunderstood.

Misunderstanding No. 2: Answering a Senate Judiciary Committee questionnaire, Miers wrote that, when addressing a lawsuit on the Voting Rights Act as a Dallas city councilwoman, "the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause." The Los Angeles Times ran a story in which legal scholars scoffed at her take on proportional representation and the law.

Brett M. Kavanaugh, Miers' successor as White House staff secretary, told me over the phone, "Some people read into that a different meaning than was clear in the context of the case she was describing." That is: Miers was referring to one person, one vote.

Again, a justice cannot afford to be misunderstood. That said, Republican senators at least should hear out Miers. Let them listen to her testimony before the Judiciary Committee before they decide if she is or isn't qualified to serve on America's top court.

Besides, there is something refreshing about Bush's decision not to pick from a prescribed list of appellate judges. Brad Blakeman, a Washington lobbyist who worked with Miers in the White House, noted that if the Founding Fathers had wanted only judges to serve on the Big Bench, they could have written that into the Constitution -- except they didn't.

Blakeman believes the Framers "felt that there should be diversity in the court, and they gave the president wide discretion in picking someone who the president felt would complement the court." Miers fits that bill. She's been elected to the Dallas City Council. She served as president of the Dallas Bar Association. Methinks she might bring a real-world perspective to the tight little universe of legal lingo and black robes.

Those great legal minds make mistakes -- witness the bonehead Kelo decision that expanded the definition of "public use" so that cities can seize homes from law-abiding taxpayers under eminent domain, then hand them over to big corporations.

I have heard from conservative readers who tell me that Bush owes them the judges they want. Wrong. Bush beat Kerry nationally by about 3 percentage points. He's not king. He needs a nominee who will be approved by the Senate. He can't win with a Bork think-alike.

Conservatives ask: Why elect Republicans if we don't get the judges we want? Answer: So that you'll get judges you can live with.

If, as some insiders suggest, Bush does have to pull the Miers nomination, I have this bit of unsolicited advice: Bush should nominate a pro-choice Republican.

Until now, he has given the anti-abortion crowd everything they reasonably could expect. And this is how they say thank you. If this is how they behave when they think they've been slapped, they should be slapped silly.

Copyright 2005 Creators Syndicate

Debra Saunders

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