When President Bush nominated John Roberts to the U.S. Supreme Court in July, Democratic critics quickly pointed out that, as a young nominee with only two years of experience on the bench, he has left a small paper trail to indicate his judicial philosophy. Little did America know just how brief a judicial record could be. Harriet Miers, Bush’s second nominee to the court, has no experience as a judge whatsoever, and her nomination has caught lawmakers and the public off-guard. Even Republicans are not rushing to accept Bush at his word, but are instead actively expressing their displeasure with his choice. In nominating a person with virtually no record – and hence, with little to criticize – Bush appears to be purposefully avoiding debate. As Miers goes before the Senate Judiciary Committee, she will have to provide senators with more substantial proof of her judicial philosophy than Bush’s warm praise.
The Roberts nomination generated a highly politicized and issue-based debate that focused on political rather than judicial ideology. But the case of Miers may be even more disturbing, as Bush has now asked senators to rely on his close friendship with Miers in determining her worth as a judge. The Senate must not be willing to take the president on his word alone and must ensure that the hearings answer a more important question than where her personal loyalties lie: What sort of justice would she be?
According to The New York Times, a search into 2,000 documents from her tenure at the lottery commission released several juicy tidbits about Miers. As a result of the search, Americans know she called Bush “cool” on a several occasions, sent him birthday cards and thought very highly of the job he did as Texas governor. What more could Americans possibly want to know about Miers?
Miers’s close relationship with Bush was not the only factor that won over James Dobson, founder of the conservative group Focus on the Family – he said he received assurances from an anonymous source that Miers opposes abortion. The lack of an official record to indicate this furthers the plausibility that back-door discussions and guarantees could be taking place. If the president or other Republicans have information regarding Miers’s judicial philosophies, it is their duty to share them with the public. The confirmation process should not be game of “telephone” where people “pass on” the word that Miers will fulfill conservatives’ wishes.
Since the 1976 Buckley v. Valeo campaign finance case – when the Supreme Court ruled to limit campaign contributions in large part to curb the appearance of corruption – it has become an accepted belief that even the appearance of cronyism, whether or not it actually occurs, serves to undermine faith in the American democratic system. If the Senate approves a close personal friend of the president with no judicial experience or record to back her, it will send a disturbing message regarding the integrity of the U.S. courts and of the supposed system of checks and balances.
While the president’s judgment can be taken into consideration, the Senate’s consent cannot rest solely on his endorsement. Miers carries the burden of proof to demonstrate, either through her answers during hearings or through her record, what kind of justice she will be. It is not the Senate’s job to find something “wrong” with Miers or rubber stamp her into the nation’s highest court simply because there is nothing objectionable to be found. We have a judicial standard to uphold.