The judicial philosophy of Harriet Miers, President Bush's surprise choice to replace Sandra Day O'Connor on the Supreme Court, remains a mystery. But what little is known about Miers suggests she is a political operative with some extreme views if not extreme qualifications. In a nutshell, Miers fails Perrspectives' "Three Strikes Test" for the Supreme Court.

Back in July, I urged Democrats to hold their fire on John Roberts and focus instead on Bush's second nominee, taken for granted to be a hard core conservative ideologue. Not only would the eminently qualified Roberts be confirmed regardless, I argued, but liberal interest groups would lose the PR battle should they try to block him. (As it turned out, NARAL found that out the hard way.)

Seeking to block Roberts on principle, and not just on tactical grounds, was also a risky proposition and dangerous precedent for Democrats and their liberal allies. Unlike a Clarence Thomas, Roberts' legal excellence was not in question. Unlike Robert Bork, Roberts did not have a long and highly public trail of extremie views on judicial and political issues of the day. And much less so than Bork, Roberts was not a long-time partisan operative.

Even with her stealth public record, we may be able to infer that Harriet Miers seems to fail the SCOTUS Three Strikes Test:

• Dubious Qaulifications. This subject has been much discussed and so needs little elaboration here. Since World War II, other nominees without judicial experience have been advanced and confirmed. But unlike Fortas, Rehnquist or Jackson, Miers simply does not have a high-profile, public record of excellence in academia, government or other public service.
• Extreme Views. We may know little about Miers, but her opposition to choice and women's reproductive rights is clear. As head of the Texas bar, she led the push at the ABA to end its support for abortion rights. She is known to have attended pro-life rallies in Texas, and despite President Bush's feigned ignorance on the subject, is known to friends as being hostile to choice. As I've argued elsewhere, being anti-choice alone is not sufficient grounds for opposition. But combined with her unwavering support for the President's policies on torture and detention and her firm's questionable business practices, Miers may well be beyond the mainstream.
• Proven Partisan Operative. This may be the most damning charge against Miers. Going back to her days in Texas, her association with President Bush has been characterized by supreme opportunism, her nomination a reward for croynism over qualification. It was Miers who did the blocking and tackling on Bush's National Guard no-show woes in the 1990's. In 2001, Miers was Bush's staff secretary, making her the gatekeeper for critical information such as the infamous August 6th, 2001 Presidential Daily Brief (PDB), "Bin Laden Determined to Strike in U.S." As Bush's deputy chief of policy, she toed the line on administration propaganda on the economy, Iraq, Social Security and a host of other issues. Even today, RNC chairman Ken Mehlman tried to reassure anxious conservatives of Miers' dependability, noting that the President selected Miers in part because she was one of the architects of the legal framework for his war on terror.

None of this is to say Democrats should empty both barrels at Miers. Politically, it probably makes sense to let conservatives like Richard Viguerie stew and lead a revolt against Miers, as Senate Minority Leader Harry Reid seems content to do. Miers, after all, may not be nearly as dangerous as some the candidates Bush might have put forward and she probably will end up on the Court as a result.

Harriet Miers may yet hit a home run during the Senate confirmation process. But on my scorecard, she may have already struck out.

—Perrspective 2:14 PM | Permalink | Comments (2) |