Appointments to the U.S. Supreme Court

Responses to the nomination
of Harriet Miers

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Background:

On 2005-JUL-01, Justice Sandra Day O'Connor announced her resignation from the U.S. Supreme Court. She has delayed her departure until her replacement is installed.

On 2005-OCT-03, President Bush appears to have broken his campaign promise to nominate Justices for the U.S. Supreme Court in the mold of strict conservative constructionists Antonin Scalia and Clarence Thomas. Instead he nominated White House counsel Harriet Miers (1945 -) to replace retiring Justice O'Connor. Although she has not left much of a paper trail, she appears to be much more moderate than the most conservative constructionists on the Court. This may well prove to be a serious disappointment to religious and social conservatives who had hoped that the two 2005 additions to the court, would result in a major movement to the right. Since a very large percentage of decisions are made by a 5 to 4 vote, it would not take much of a shift to produce major changes.

About Harriet Miers:

If her nomination is confirmed by the Senate, she would be only the third woman to serve on the Court. Sandra Day O'Connor was the first; Ruth Bader Ginsburg was the second.

Miers was born in Texas. She has a undergraduate degree in mathematics from Southern Methodist University, and graduated from their law school in 1970. She served for two years on the Dallas City Council. Miers has practiced in Texas as a corporate lawyer. She was the first female president of the Dallas Bar Association and of the Texas Bar Association. She was named by President Bush when he was still Governor of Texas to the state's lottery commission. Miers came to the White House during Bush's first term as White House staff secretary, and later became deputy White House chief of staff. When Alberto Gonzales became Attorney General, she was appointed as White House counsel, the president's in-house lawyer.

She has been "...named one of the nation's 100 most powerful attorneys on numerous occasions by the National Law Journal as well as one of the 50 top woman attorneys." ₁₄

Because of her previous roles as corporate lawyer and White House counsel, it is likely that almost all of her memos and letters will be subject to attorney-client privilege. Thus, they cannot be released to the Senate Justice Committee who will be reviewing her nomination. It appears that she has never written any legal articles which revealed her viewpoint on any of the controversial topics of the day.

Positions that Harriet Miers has allegedly taken:

Her views on many key issues, such as personal privacy, affirmative action, abortion access, equal rights for sexual minorities, etc are not known in detail. However, some scraps of information have surfaced:

Political orientation: She has contributed to the election campaigns of both Republicans and Democrats. During the late 1980s, she gave $1,000 to two Democrats: Senator Lloyd Bentsen (D-TX)and to Al Gore, when he ran for president. Since then, she had donated only to Republican candidates.

Abortion access: Lorlee Bartos, who was Miers campaign manager in 1989 when she ran for Dallas City Council, described Miers as having been "pro-choice in her youth." But she underwent "a born-again, profound experience" which caused her to oppose abortion access. 15 Miers remains an evangelical Christian today. Ron Key has been Miers' pastor since the early 1980s. His church is opposed to women's access to abortion. He left Valley View Christian Church to organize a new church with Miers and others. 15 In 1993 she tried to have the American Bar Association (ABA) reverse its decision to support the U.S. Supreme Court 1973 decision in Roe vs. Wade -- the ruling which gave women the right to seek an early abortion. At the time, the ABA members in Texas were seriously divided on the issue of abortion access. Miers "came to believe that the national organization should not take sides" on controversial topics. 7

In her 1993 speech before the Executive Women of Dallas, TX, concerning abortion access, she said: "The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual [woman's right] to decide for herself whether she will have an abortion." That is not remarkable; it is merely a statement of facts. But the then urged her listeners to recall that "we gave up...legislating religion or morality....When science cannot determine the facts and decisions vary based upon religious belief, then government should not act."

Roles for women: Elaine Donnelly, president of the Center for Military Readiness, allegedly stated that:

"As White House counsel, Ms. Miers either approved of the Department of Defense's illegal assignments of women in units required to be all-male, which is still continuing in violation of the law requiring notice to Congress in advance, or she was oblivious to the legal consequences of those assignments.....I am very disappointed by the president's choice. Ms. Miers does not have a judicial 'paper trail,' but her record as White House counsel is a legitimate cause for concern. Democrats and liberals who were willing to use the military for purposes of social experimentation have reason to be pleased." ₁₈

World Net Daily, a conservative Christian news source, stated that:

"Donnelly believes the actions of Miers could lead directly to a future court ruling requiring women to register with the Selective Service for the draft because they are now being, against the wishes of Congress, assigned to land combat." ₁₈

Equal rights for sexual minorities: World Net Daily stated that:

"Donnelly also concludes that Miers approved the Bush administrations retention of President Clinton's 'don't ask, don't tell' regulations, which, she says, are different from the 1993 law passed by Congress.... during Miers long affiliation with the American Bar Association, she submitted a 1999 report to the ABA's house of delegates that included recommendations to...[enact] laws and public policy providing that the sexual orientation of adults be no bar to adoption of children."

"Under the heading 'Family Law' and subheading 'Adoption,' the document states: 'Supports the enactment of laws and public policy which provide that sexual orientation shall not be a bar to adoption when the adoption is determined to be in the best interest of the child'." ₁₈

International criminal court: World Net Daily stated that her submission to the ABA's house of delegates also:

 "...included recommendations to develop and establish an International Criminal Court.....included, under the heading 'International Law and Practice', is a recommendation for 'the development and establishment of an International Criminal Court'." ₁₈

Reactions to the nomination of Harriet Miers:

Response was not long in coming. CNN announced in its Breaking News service by Email at 7:15 AM ET that "President Bush to nominate White House counsel Harriett Miers to replace retiring Supreme Court Justice Sandra Day O'Connor, CNN has learned."

Initial reactions came swiftly during 2005-OCT-03 & 04:

	Within a few hours, Wikipedia had published an article which referred to media outlets' criticisms of Miers' nomination. The latter noted that she had never acted as a judge, and had never argued a case before the U.S. Supreme Court. 2
	Some commentators have criticized the nomination because Miers has never served as a judge. All of the justices currently serving on the U.S., Supreme Court were originally judges. "However, nearly a third of the 109 Supreme Court justices in U.S. history were not judges, including Chief Justice William Rehnquist...." 1 Fewer than half of the Supreme Court justices in the history of the U.S. had spent time as a judge prior to being installed as justices in the high court. This includes: "...25 practicing lawyers, nine attorneys general or deputy attorneys general, seven holders of other Cabinet positions, six senators, two members of the House of Representatives, three governors, two solicitors general and two law professors." 3
	Republican consultant Greg Mueller, who works for several conservative advocacy leaders said: "There's every indication that she's very similar to Judge Roberts -- judicial restraint, limited role of the court, basically a judicial conservative." 4
	Senator Minority leader Harry Reid (D-NV) had recommended to Bush that he nominate Miers. He said: "I like Harriet Miers. In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer."
	Senator Charles Schumer (D-NY) said: "There's hope that Harriet Miers is a mainstream nominee." He said that he would push for documents and pressure her to reveal her judicial philosophy.
	The Covenant News Wire Service, a Fundamentalist Christian news source, described Miers simply as a "feminist" and as a "Democrat supporter." They suggested that her installation "....won't do anything to reshape the nation's judiciary for years to come unless the People learn the impeachment process." 5
	Adair and Allison of the St Petersburg (FL) Times commented:

"President Bush's surprise nomination of White House counsel Harriet Miers to the Supreme Court scrambled the political landscape on Monday. Democrats were remarkably warm, and conservatives were unusually cool. The upside-down politics had Democrats calling her 'a trailblazer for women' and conservatives asking if she might be too liberal. Both sides were uncharacteristically vague because Miers, a former corporate lawyer and longtime Bush aide, has little public record.... Conservatives had been hoping the president would pick someone with more clearly articulated views on issues such as gay marriage and abortion, and whose conservatism would be strident and unabashed." ₆

Dr James Dobson, founder and head of the fundamentalist Christian para-church group Focus on the Family wrote:

"President Bush pledged emphatically during his campaign to appoint judges who will interpret the law rather than create it. He also promised to select competent judges who will 'not use the bench to write social policy.' To this point, President Bush's appointments to the federal bench appear to have been remarkably consistent with that stated philosophy..... On the other hand, one cannot know absolutely about matters of integrity and philosophy until a jurist is given the tremendous power and influence of their position. As Lord Acton said, 'Power corrupts, and absolute power corrupts absolutely.' Sadly, that seems to have happened to Justices Souter and Kennedy. All we can say now is that Harriet Miers appears to be an outstanding nominee for the Supreme Court." ₁₃

Responding to the generally negative response of the Evangelical community to Ms. Miers' nomination, James Dobson devoted his entire Focus on the Family broadcast of OCT-05 to an explanation of why he has "...come out, initially at least, in favor of her nomination." He referred to the nomination as being of "unprecedented significance," because he expects that the addition of Mier to the Supreme Court would eventually lead to the overturn of Roe v. Wade and an end to legal abortion access in the U.S. ₂₀

Jan LaRue, chief counsel for Concerned Women for America, a Christian group that opposes abortion access and equal rights for sexual minorities, said:

"I regret that we couldn't come out of the box whole-heartedly endorsing a known nominee. [Although Miers has done a good job for the president] that doesn't in and of itself mean she's the best qualified person to be nominated to the Supreme Court. There are so many known people who could have been nominated." ₆

	Jonathan Turley, a law professor at George Washington University, commented: "This certainly smacks of cronyism. The most outstanding characteristic of this appointee seems to be her long association with the president." 6
	Mary Cheh, a law professor at George Washington University, said: "She has some features about her that are O'Connor-esque. She appears to be more grounded in everyday experiences than the other people who serve on the court." 6
	Powerline, a conservative Blog stated:

"I'm sure that she is a capable lawyer and a loyal aide to President Bush. But the bottom line is that he had a number of great candidates to choose from, and instead of picking one of them -- Luttig, McConnell, Brown, or a number of others -- he nominated someone whose only obvious qualification is her relationship with him." ₉

Captain Ed at the Captain's Quarters blog wrote:

" I'm certain that Harriet Miers is a fine attorney in private practice and has performed admirably as one of Bush's long-term aides. However, nothing in her career shows that she has any remarkable experience or aptitude for this assignment. As Brant at SWLiP (an attorney himself) points out, Miers came from a second-tier law school with no law-review experience, no noticeable record of scholarship or significant practice at constitutional law. That describes thousands and thousands of fine attorneys around the country with whom I would place my trust to sort out my personal legal struggles. For a Supreme Court selection, that background at best can only be called remarkably unremarkable." ₁₀

	Right-wing News said: "Miers is a Bush crony with no real conservative credentials, who leapfrogged legions of more deserving judges just because she was Bush's pal.....This is undoubtedly the worst decision of Bush's entire presidency so far." 8
	Rev. Barry W. Lynn, executive director of Americans United for Separation of Church and States wrote:

"It is vital for the senators to determine Miers' understanding of the First Amendment. Miers has never been a judge, and it is imperative that the judiciary committee uncover her judicial philosophy and her views on the relationship between religion and government... [Senate Judiciary] Committee members should push Miers to be forthcoming on her understanding of constitutional issues." ₁₁

Usually, the Family Research Council expresses opinions which are identical to those of Focus on the Family. This time, they differed slightly. They are taking a wait and see position. They stated:

"In the days to come, Harriet Miers will have the chance to demonstrate a conservative judicial philosophy. We will be watching closely as the confirmation process begins, and we urge American families to wait and see if the confidence they have always placed in the President's commitment is justified by this selection." ₁₂

Operation Rescue is a conservative Christian group dedicated to reducing or eliminating abortion access. Their president, Troy Newman, said:

"We must reject the nomination of Harriet Miers to the Supreme Court of the United States. President Bush promised that he would appoint strong constitutional constructionist to the Supreme Court in the mold of Thomas and Scalia, but Miers is no Thomas or Scalia. We must be given a nominee that will restore the protections of personhood to the pre-born. If your head was about to be crushed, would you want to trust you life to someone who will not state their position on your murder? Bush was given one mandate by the American people in the last election and that was to reform the Supreme Court. Reform does not come in a brown paper bag." ₁₆

Numerous visitors to the Operation Rescue web site contributed their views. Most were disillusioned at President Bush's choice. ₁₇

E.J. Dionne, a columnist for the Washington Post, wrote:

"She could face opposition from the right, whose partisans devoutly wished for a nominee with strong judicial credentials and a clear conservative record. Under other circumstances, this might entice liberals into hoping Miers is a closet moderate. But their instinctive mistrust of someone so close to Bush will keep many liberals from coming her way....Miers has been thrust into a battle for which her career as a Bush loyalist is more liability than asset, and in which the clean slate she puts forward could be filled in primarily by her opponents." ₁₉

According to Baker and Balz of the Washington Post:

"Republican activists" who are angry at President Bush's nomination of Miers to the Supreme Court, "confronted the president's envoys during a pair of tense closed-door meetings. One was led by Paul M. Weyrich of the Free Congress Foundation; the other by Grover Norquist of Americans for Tax Reform. Total attendance was approximately 185 activists. Many "...declared they could not support Miers at this point, while columnist George Will decried the choice as a diversity pick without any evidence that Miers has the expertise and intellectual firepower necessary for the high court." ₂₁

AA News, an information source from American Atheists commented that some conservatives:

"...expressed frustration, citing the fact that groups like the Federalist Society have spent over 20 years grooming prospective candidates from elite schools with impeccable legal credentials to fill vacancies on the Supreme Court.  Religious right groups fear that the Miers nomination is a 'missed opportunity' to replace the moderate Justice Sandra Day O'Connor with a more strident ideologue in the image of Antonin Scalia or Clarence Thomas.  There are also concerns that Mr. Bush may be risking 'a Souter,' referring to the move by his father, President George H.W.  Bush who nominated David Souter to the high court.  Justice Souter ended up becoming a disappointing swing vote for many religious right advocates in a number of cases, especially several having to do with the separation of church and state."

AA News reports allegations that key conservative religious leaders, like James Dobson, founder and head of Focus on the Family, and Rev. Tim Haggard, president of the National Association of Evangelicals received phone calls from the White House prior to Miers' nomination. They quote Eric Gorski of the Denver Post who wrote: "Haggard said he, like Dobson, received a phone call from the White House before Miers' nomination. Like Dobson, Haggard isn't talking about the conversation." The Christian Science Monitor reported that Dobson originally waffled on backing the Miers nomination, but changed his position "after extensive lobbying by the White House." ₂₂

Jay Sekulow of the Fundamentalist Christian legal advocacy group, American Center for Law and Justice, noted that Miers would be the first evangelical Protestant on the Supreme Court since the 1930s. Sekulow said: "This is a big opportunity for those of us who have a conviction, that share an evangelical faith in Christianity, to see someone with our positions put on the court." 22

Subsequent developments:

	2005-OCT-18: About Roe v. Wade: Allegations have surfaced that Miers indicated her opposition to Roe v. Wade in 1989. This was the Supreme Court's decision in 1973 which granted women the right to early abortions. She revealed her position by answering the questionnaire of "Texans United for Life," a pro-life group, while she was running for city council Dallas, TX. She pledged her support for a constitutional amendment to criminalize all abortions except those necessary to save the life of the woman. She said that she would participate in "pro-life rallies and special events."
	2005-OCT-19: Hearings: Her confirmation hearings will begin in the Senate on NOV-07.
	2005-OCT-20: More on Roe v. Wade: Senator Herb Kohl (D-WI) met with Miers for about 45 minutes. She downplayed the significance of the 1989 questionnaire. According to Kohl: "She made the point that it was at a different time for a different purpose. And (she said) we should not read too much into that in terms of where she might be on the issue of privacy, and a woman's right to choose. She understands that when she comes before the committee, people will be looking for more than broad statements...There's more that we need to know." 23
	2005-OCT-25: Presidential stonewall: Members of the Judiciary Committee, both Republicans and Democrats, have asked President Bush for documents which contain details of advice that Harriet Miers has given to him. They expected that he would refuse to divulge some documents because of executive privilege and lawyer-client privilege. However, President Bush announced on OCT-24 that he would not release any documents at all which related to the "decision-making process, what her recommendations were. That would breach very important confidentiality, and it's a red line I'm not willing to cross." Sen. Charles Schumer (D-NY) said it appears that the president was refusing access to material that is not shielded by attorney-client or executive privilege. Sen. Arlen Specter (R-PA) head of the Judiciary Committee said the panel had requested "nonprivileged documents." He hoped to reach a compromise with the White House. 24

Miers' resignation:

When her 1993 speech before the Executive Women of Dallas, TX became public, the most powerful conservative religious groups rose in unison against her nomination.

Wendy Wright of Concerned Women for America (CWA) said:

"...her professional and civic life leaves us questioning whether she chooses to reflect and advance the views of the group she's with at the moment. Though she attends an Evangelical church known for its pro-life position, during the same time period she advanced radical feminists and organizations that promote agendas that undermine respect for life and family. This drives us to rely upon her actions, her deeds, her words as opposed to the endorsements of those who have worked with and known her.

Jan LaRue, CWA' chief counsel, said:

"We believe that far better qualified candidates were overlooked and that Miss Miers' record fails to answer our questions about her qualifications and constitutional philosophy. In fact, we find several aspects troubling, particularly her views on abortion and a woman's 'self-determination,' quotas, feminism and the role of judges as social activists. We do not believe that our concerns will be satisfied during her hearing."

"Every time she quotes or cites women she admires, they're to the left of Betty Freidan. We desire role models who have a strong record of promoting and advancing constitutional principles. Miss Miers' record, as reflected in her speeches, is of promoting a leftist agenda that relies upon the courts to impose their views. We'd prefer to have someone fond of quoting Margaret Thatcher or Antonin Scalia rather than Barbra Streisand and Gloria Steinem. Some of Miss Miers' own comments border on male-bashing."

"The record we know is a record that convinces us that Miers is not even close to being in the mold of Scalia or Thomas, as the President promised the American people." ₂₅

	Bruce Hausknecht of Focus on the Family said: "Some of the statements seemed to be pro abortion, and even as far as saying that there should not be a moral foundation for legislating laws, seemed to be in keeping with a liberal's point of view of the world." 26
	Tony Perkins of Family Research Council described her 1993 speech as "

"...very disturbing.  Miss Miers' words are a close paraphrase of the infamous Roe v. Wade decision. Her use of terms like criminalize abortion to characterize the pro-life position and guarantee freedom to describe the pro-choice position should have sounded alarms in the White House during the vetting process. When we defend the right to life, we hearken back to the Declaration of Independence, not to some strictly sectarian view. Science has long ago answered the question of when human life begins. The constitutional and legal question is whether we are going to defend innocent human life from lethal assault. This speech raises very troubling questions about Miss Miers' views of constitutional matters." ₂₇

She submitted her resignation as a candidate for associate justice of the U.S. Supreme Court, saying that if she continued, the problem over the release of documents could damage the presidency and the country. President Bush reluctantly accepted her resignation. She remains as chief counsel at the White House.

References used:

The following information sources were used to prepare and update the above essay. The hyperlinks are not necessarily still active today.

1. Steve Holland, "Bush picks Texas ally for high court," Reuters News Agency, 2005-OCT-04.
2. "Harriet Miers Supreme Court nomination and hearings," Wikipedia, at: http://en.wikipedia.org/
3. Linda Greenouse, "Not a judge? No problem," New York Times, 2005-OCT-03
4. Deb Riechmann, "Bush chooses Miers for Supreme Court," Associated Press, at: http://news.yahoo.com/
5. "Miers Supports Democrats," Covenant News Service, 2005-OCT-03, at: http://www.covenantnews.com/
6. Bill Adair & Wes Allison, "On Miers: Democrats happy, Republicans leery," St Petersburg Times, 2005-OCT-04, at: http://www.sptimes.com/
7. "Who is she?" St Petersburg Times, 2005-OCT-04, at: http://www.sptimes.com/
8. Cliff Kincaid, "Will conservatives derail Miers?" News With Views, 2004-OCT-04, at: http://www.newswithviews.com/
9.  John H. Hinderaker and Scott W. Johnson, "A disappointment," Powerline Blog, 2005-OCT-03, at: http://www.powerlineblog.com/
10. Captain Ed, "My grudging support, such as it is," Captain's Quarters, 2005-OCT-03, at: http://www.captainsquartersblog.com
11. "Americans United Urges Senate To Closely Examine Miers' Views On Church And State," Americans United, 20050-OCT-03, at: http://www.au.org/
12. Tony Perkins, "Wait and see," Family Research Council, Washington Update, 2005-OCT-03.
13. Pete Winn, "Next Supreme Court nominee announced," Citizen Link, Focus on the Famly, 2005-OCT-03, at: http://www.family.org/
14. Dave Andrusko, "President Bush Nominates Harriet Miers to High Court," National Right to Life, 2005-OCT-03, at: http://www.nrlc.org/
15. Dave Levinthal, "Miers said to be on 'extreme end' of pro-life movement," Rominger Legal, 2005-OCT-03, at: http://www.romingerlegal.com/
16. "OR Will Not Support Miers to the Supreme Court," Press Release, Operation Rescue, 2003-OCT-03, at: http://www.operationrescue.org/
17. Reactions to the Operation Rescue press release are at: http://www.operationrescue.org/
18. Joseph Farah, "Mystery-woman Miers: New clues to resume. Bush pick supported International Criminal Court, homosexual adoptions, women in combat, tax hike," World Net Daily, at: http://www.worldnetdaily.com/
19. E.J. Dionne, "Bush's choice too cleaver by half. Court nominee won't satisfy left or right," Washington Post. Published by The Toronto Star, 2005-OCT-05, Page A22.
20. Stuart Shepard, "Dr. Dobson Explains Support for the Supreme Court Nominee," CitizenLink special report, Focus on the Family, 2005-OCT-05.
21. Peter Baker and Dan Balz, "Conservatives Confront Bush Aides. Anger Over Nomination of Miers Boils Over During Private Meetings," Washington Post, 2005-OCT-06, at: http://www.washingtonpost.com/
22. "Miers nomination. Religious Right leaders receiving 'confidential' White House info?," A A News, 2005-OCT-07.
23. Frederic Frommer, "Kohl: Miers downplays abortion answer," 2005-OCT-20, Associated Press, at: http://www.gazetteextra.com/
24. David Espo, "Bush won't reveal private advice from Miers," Associated Press, 2005-OCT-25, at: http://www.romingerlegal.com/
25. "CWA calls for Miers withdrawl," Concerned Women for America, 2005-OCT-26, at: http://www.cwfa.org/
26. Bill Wilson, "Miers' Withdrawal Greeted Warmly By Conservatives," Focus on the Family, 2005-OCT-28, at: http://www.family.org/
27. Tony Perkins, "Miers' 1993 Speech Prompts More Questions," Family Research Council, 2005-OCT-26, at: http://www.frc.org/

Copyright © 2005 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-17
Author: B.A. Robinson