From the 2005 News Archive
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Read Professor Mark Graber's Baltimore Sun editorial on the nomination of Harriet Miers to the Supreme Court

Bush's Hidden Vision
By Mark A. Graber

Originally published October 4, 2005 in The Baltimore Sun

President Bush again used his informational advantage when nominating Harriet Miers to the Supreme Court.

Bush administration members know what both Ms. Miers and Chief Justice John G. Roberts Jr. think about the constitutional issues most likely to come before the court. Democrats in Congress and the public do not, and are not likely to learn more.

By nominating people whose views are known only to administration insiders, the president is best understood as trying to influence the direction of the Supreme Court without having to reveal his constitutional commitments or take political responsibility for advancing a constitutional vision.

The White House almost certainly has intimate knowledge of what Ms. Miers thinks about abortion, torture, federal power and other contested constitutional issues. As counsel to the president with particular responsibility for federal judicial appointments, Ms. Miers must have revealed her thoughts on the issues coming before the Supreme Court to Justice Department officials and Mr. Bush.

Even less so than Chief Justice Roberts, however, she has never held a position that required her to speak or write about her understanding of the Constitution or the judicial function. She has no judicial experience and only a short term on a city council. What she thinks about gay marriage, executive power to detain American citizens without trial or the scope of the takings clause is a mystery to the general legal community and broader public.

The confirmation process is unlikely to pierce the veil Ms. Miers has placed over her constitutional vision. As was the case with Chief Justice Roberts, she is likely to limit herself in testimony before a Senate committee to clichés about judicial activism and the obligation not to legislate from the bench. Chief Justice Roberts relied on so many clichés when he appeared before the Senate panel that most liberals could, without committing perjury, have given the same answer to every question he was asked other than "what is your name."

Ms. Miers is not a stealth nomination. Stealth nominations occur when presidents, faced with a hostile Senate, nominate jurists whose opinions are unknown to all. Justice David H. Souter was a stealth nomination because neither the first President Bush nor the Democrats in Congress could reasonably predict how he would vote on constitutional controversies. Ms. Miers and Chief Justice Roberts are well known to administration insiders. They are only stealth candidates to congressional Democrats and the public.

When presidents use informational advantages, they undermine political accountability. Nothing is wrong with a somewhat politicized judicial confirmation process. Americans dispute the proper interpretation of the Constitution and the proper role of the federal judiciary. These are matters that should be subject to public debate, and the judicial nomination process is an appropriate occasion for engaging in those debates.

Democratic principles are not violated when elected officials place on the federal bench people they believe share their constitutional vision. President Ronald Reagan acted democratically when nominating Robert H. Bork. Senate Democrats acted consistently with their constituents' wishes when rejecting the Bork nomination.

Mr. Bush refuses to reveal his constitutional vision. When debating Sen. John Kerry, he insisted only that justices should not support slavery and should affirm the Pledge of Allegiance. He refuses to state publicly whether Roe vs. Wade should be overruled or whether conservative judicial activism is more legitimate than liberal judicial activism.

No one knows whether Mr. Bush agrees with Justice Antonin Scalia that the Religious Freedom Restoration Act and the Violence Against Women Act are unconstitutional. We still do not know after scrutinizing one judicial appointment.

By taking advantage of his informational advantage, Mr. Bush hides his responsibility for the eventual decisions of a Roberts/Miers court. He knows whether Chief Justice Roberts and Ms. Miers favor overruling Roe or merely narrowing the decision, whether they believe administration interrogation practices are consistent with federal law and international treaties and whether they think contemporary exercises of the commerce and spending powers are constitutional.

His nomination decisions were partly made on beliefs that Ms. Miers and Chief Justice Roberts share his vision on these matters. Mr. Bush knows what that constitutional vision is. The American people should also have the benefit of that knowledge.

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Reprinted with permission of The Baltimore Sun.


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Copyright © 2014, University of Maryland Francis King Carey School of Law. All Rights Reserved