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Judging Harriet Miers: Constitution, civil liberties shouldn't be gambled with

Illustration by Patricia Tompkins
By Kara Karlson
Arizona Daily Wildcat
Tuesday, October 11, 2005
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President Bush's nomination of Harriet Miers to the Supreme Court last week sparked a firestorm of criticism.

Did he find a qualified nominee in the woman he has referred to as a "pit bull in size-6 shoes"?

There is no doubt that Harriet Miers is a more than competent attorney. Perhaps she will make a great, Constitution-respecting associate justice on this nation's highest court.

But perhaps not. The very fact that Miers was a lawyer also prevents almost anything from being known about her (because of attorney-client privilege).

Attorney-client privilege is a necessary and respected policy that should not be violated, which is exactly the reason the American public deserves a nominee they can reasonably find out more about without trampling attorney-client confidentiality.

Even law review articles or briefs to the Supreme Court are absent from Miers' record, giving the Senate nothing to fight about (and therefore nothing to vote on), which was probably Bush's rationale behind nominating her.

This was also the rationale provided when newly confirmed Chief Justice Roberts was nominated a few weeks ago - that nominating a judge with a scant record would make him easier to confirm.

And it worked. Roberts was confirmed in the Senate with relatively little fighting, especially when the filibusters of the appeals court judges over the last few years are considered.

In fact, Roberts was confirmed by a vote of 78-22, an easy, impressive win as far as Senate votes go.

With the Miers nomination, the president has one-upped himself by managing to nominate a new potential justice that has even less of a record than Roberts.

Democrats are gloating over the different responses from Republicans, ranging from the full support of evangelical James. Dobson to conservative groaning that she is not the Scalia-like judge they were hoping for.

Kara Karlsoncolumnist

Miers' political stance with respect to social issues, however, should not be the concern (I'm reasonably sure that anyone from Texas within the Bush White House is anti-abortion and anti-gay marriage). The concern should be how she will interpret the Constitution.

Will she be an activist judge who changes the wording of the Constitution to fit her own ends (a la Kelo v. New London)? Will she ignore Supreme Court precedent in cases she may find disagreeable (potentially, Roe v Wade)?

The truth is, we won't know how she views and applies the Constitution until it is too late to do anything, should she turn out to be an activist justice who regards the Constitution as little more than guidelines rather than the supreme law of the land.

There were several contentious appeals court nominees that resulted in filibusters over the last few years. Part of the compromise was the confirmations of judges Janice Rogers Brown and Priscilla Owen.

Janice Rogers Brown and Priscilla Owen were both only confirmed this year even though their confirmation proceedings began in 2003. If Bush wanted a female nominee to the Supreme Court, either one of these ladies would have made a nominee with a well-documented judicial thought process.

The public and the Senate may have agreed or disagreed on the nominations, but the nominations would have documented history, not an absence of basic information.

Moreover, these judges would have had even more judicial experience had their nominations not been stalled for years.

In the judicial compromise between Republicans and Democrats, there was never a stipulation that those judges confirmed could not go any further than the appeals court. However, leading Democrats requested that Bush not fill the vacancy with any of the judges who were confirmed through the compromise.

So instead of having information on a judge that the public (senators included) knows something about, the Senate Democrats were asking for the president to nominate a blank slate.

It would be tempting to pick a fight just because the Democrats put forth an empty threat and a ridiculous demand. But the nomination of Rogers or Priscilla would not have been just picking a fight, as both women have the necessary education and substantial experience that more than qualify them for a position on the Supreme Court.

The president may not have wanted a fight with the opposing party, but he has caused a rift in his own party with his lack of fortitude when it comes to judicial appointments. The fate of the country and soon-to-emerge precedent on how the Constitution is viewed are too important to gamble with.

Kara Karlson is a journalism senior. She can be reached at

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