Shall We Hang Harriet Miers Without a Trial?

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Dennis A. Wright, DMin

Shall We Hang Harriet Miers Without a Trial?

Richard Land, president of the Southern Baptist Convention's Ethics & Religious Liberty Commission, predicts Supreme Court nominee Harriet Miers not only will be confirmed, barring an unexpected revelation, but that her record will be nearly identical to that of new Chief Justice John Roberts.  "I believe that unless something very unforeseen emerges in the hearings, she will be confirmed, and five years from now there will be a less than 1 percent difference in her voting record" and that of Roberts, said Land in an Oct. 17 television appearance on "Tavis Smiley," a Public Broadcasting System program.
In response to questions from Smiley, Land continued to defend President George W. Bush's nomination of Miers, who has been the White House counsel.  While evangelical Christian leaders such as Land, James Dobson of Focus on the Family and Jay Sekulow of the American Center for Law and Justice have endorsed the nominee, many conservatives have expressed disappointment with or opposition to her.  "I personally think that the White House was completely blindsided" by conservative opposition, Land told Smiley.  "And I would point out to you that most of that uproar, not all of it, but most of it is not coming from evangelical social conservatives.  It is coming from other kinds of conservatives who are itching to re-fight Bork." 
Bush has been accused by some Republicans of breaking a promise to appoint justices in the mold of Clarence Thomas and Antonin Scalia, two of the Supreme Court's most-conservative members.  Some conservative Republicans have been strident in their outrage over the Miers nomination.  Syndicated columnist Ann Coulter, for example, suggests that, "Harriet Miers isn't qualified to play a Supreme Court justice on 'The West Wing,' let alone to be a real one."  Terence Jeffrey, editor of Human Events, thinks that Bush "has done a pre-emptive Borking of his own Supreme Court" nominee.
Jeffrey replays the history for us in his October 19th column:  "I am convinced, as I think almost all constitutional scholars are, that Roe v. Wade is an unconstitutional decision, a serious and wholly unjustifiable judicial usurpation of state legislative authority.  I also think that Roe v. Wade is by no means the only example of such unconstitutional behavior by the Supreme Court."  This bit of public truth-telling was committed by Robert Bork, then a professor at Yale Law School, when he testified before a Senate Judiciary subcommittee on June 1, 1981.  Ironically, Bork made this statement about Roe in the midst of testimony in which he explained why he opposed a law that would have defined life as beginning at conception for 14th Amendment purposes.
Six years later, however, liberals used Bork's intellectual honesty against him when President Ronald Reagan nominated him to the U.S. Supreme Court.  On the day after Bork's nomination, The Washington Post quoted his 1981 statement on Roe in three different places in its "A" section.  The New York Times quoted it twice.
For this and other acts of candor on constitutional issues, Bork was defeated, 58-to-42, in a Senate that had a 55-to-45 Democratic majority.  In trashing Bork, the liberal establishment tried to send a blunt message to would-be strict-constructionist Supreme Court justices (and the Republican presidents who might nominate them): Openly defend the original meaning of the Constitution as honestly as Bork defended it in his career, and we will do everything we can to stop you from being confirmed to the high court.
John Fund suggests in the Wall Street Journal (October 18) that there are "philosophical reasons for Republican senators to oppose Ms. Miers.  In 1987, the liberal onslaught on Robert Bork dramatically changed the confirmation process.  The verb to bork, meaning to savage a nominee and distort his record, entered the vocabulary, and many liberals now acknowledge that the anti-Bork campaign had bad consequences.  It led to more stealth nominees; with presidents hoping their scant paper trail would shield them from attack." 
While Harriet Miers cannot, at this point, be accused of Borkian candor, she does appear to be what Fund calls a "superstealth" nominee --- a close friend of the president with no available paper trail who keeps her cards so close to her chest they might as well be plastered on it.  One thing is certain, "She will have hearings like no nominee has ever had to sit through," Chuck Todd, editor of the political tip sheet Hotline, told radio host John Batchelor.  "One slipup on camera and she is toast." 
Land said, "I had one commentator say to me, 'Don't you think the president has deprived us of a positive, healthy, beneficial debate about the role of judges in America by nominating Harriet Miers?'  And I said, 'No, I don't think so.'  In this atmosphere in which we are today, where there is a poisonous atmosphere concerning confirmation hearings, I think the president is attempting to spare us a negative, divisive, corrosive debate that will do no one any good, particularly a nation that is at war."
Certainly Land is certainly correct in his assessment.  Yet, this is apparently what saddens many of my conservative friends who are itching for a showdown with the liberal Democrats.  However, there may be something else to consider: Perhaps President Bush sees things out there on the radar that the rest of us cannot see.  I, for one, am willing to give him the benefit of the doubt and give Harriet Miers a fair hearing before the Senate Judiciary Committee.  When the next Justice decides to retire --- and, hopefully, that will be Ruth Bader Ginsburg! --- maybe then President Bush will go toe-to-toe with the liberals and nominate Robert Bork!
Now, wouldn't that be exciting!  One can dream, can't one?
Dennis A. Wright, DMin, is Founder and President of Understanding The Times Ministries.  An accomplished writer and educator, Wright has spoken in churches and conferences all over America on spiritual counterfeits and Christian Worldview topics.  He can be emailed at and his new website can be found at

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