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The sacrifice of Harriet Miers

by Patrick J. Buchanan
October 31, 2005

By withdrawing her nomination, Harriet Miers spared herself an agonizing inquisition and probable rejection by the Senate and did George W. Bush the greatest service of her career. She may just have helped him save his presidency.  

Like a school marm indulging a teacher's pet, Miss Miers just gave George Bush permission to retake the final exam he booted badly. She has given him a second chance to succeed where Nixon, Ford, Reagan and his father all failed: to become the president who rang down the curtain on 50 years of judicial tyranny and reshaped the Supreme Court into the great constitutionalist body the Founding Fathers intended.

George Bush is a lucky man to have a friend like Harriet Miers.

Had her nomination been pursued through the Judiciary Committee to the full Senate, it would have meant civil war inside the party. President Bush would have been forced to watch congressional members of his party and conservatives publicly call for rejection and defeat of the woman who had given him a decade of devoted service.

The fallout from this fratricidal war could have lasted for years. By standing down, Miers called off the family fight about to erupt inside the president's own household.

Nothing better befits Harriet Miers' nomination than the style and grace of her leaving it. Mirabile dictu, it may have been the Washington Post that spared us this ordeal by delivering a painless coup de grace.

Twenty-four hours before Miers withdrew, the Post carried on Page 1 the report of a startling speech she delivered in 1993 to a Dallas women's group. As the Post's Jo Becker reported, while still president of the State Bar of Texas, Miers "defended judges who order lawmakers to address social concerns."

But judges who "order lawmakers to address social concerns" that the lawmakers decline or refuse to take up are the quintessence of judicial activism – i.e., it is the substitution by judges of their own ideas of what law and public policy ought to be for that of the men and women elected to write laws and to make public policy.

The Post went on:

While judicial activism is derided by many conservatives, Miers said that sometimes "officials would rather abandon to the courts the hard questions so they can respond to constituents: I did not want to do that – the court is making me."

Exactly. Lawmakers often prefer to "let this cup pass away," and allow courts to decide social and moral issues. But if we are to remain a republic, the proper recourse when lawmakers lack the courage or wisdom to do the right thing is not to have judges order them to do the right thing, but to elect new lawmakers.

In her speech, Miers showed sympathy for feminist causes, spoke of the "glass ceiling" and said that on issues like abortion, "the underlying theme in most of these cases is the insistence of more self-determination. And the more I think about these issues, the more self-determination makes sense."

Miers seemed to be implying that Roe vs. Wade, by which the legal protection of unborn life was removed from the jurisdiction of lawmakers and handed over to women, was probably the right call.

Given Miers' absence of a judicial record or a deeply embedded philosophy of judicial restraint, her expressed sympathy for jurists who order legislators to act, and her sympathy for feminist causes and affirmative action, it is hard to see how a conservative senator could vote to make her the decisive voice on the Supreme Court for the next generation.

If they voted her down, they would split the party and enrage the president. If they voted her onto the court, they would betray the voters to whom they had pledged to support only strict constructionists and constitutionalists of proven merit and ability.

It was lose-lose. The president, his party and the right were all marching grimly toward First Manassas, when Sister Harriet saved us all.

Sens. Kennedy, Leahy and Boxer are urging President Bush to "show strength," by appointing a moderate. But, if I am not mistaken, didn't Bush just do that? And how did the nominee who made Harry Reid a happy man turn out?

President Bush just survived a barrel ride over Niagara Falls. A man of reasonable intelligence would not risk it a second time.

With the nominations of John Roberts and Bernard Bernacke, Bush appointed men of experience and proven capacity who share his beliefs. Given this heaven-sent second chance, he should do the same with the Supreme Court: Pick a justice whose credentials are unimpeachable and whose judicial philosophy reads likes an excerpt from The Collected Works of Antonin Scalia.

With a single stroke – the nomination of a Supreme Court justice who will remove the smile from the countenance of Chuck Schumer and unite his unhappy household in praise of Bush and anticipation of battle, as they pull down the rusty old pike-staffs from the wall – President Bush can begin the resurrection of his presidency.

In the title of the old Gospel Song, "Oh Happy Day."

2005 Creators Syndicate, Inc.

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