To some of us the Harriet Miers controversy is somewhat puzzling; conservatives do not seem to know when they have been lucky. While it is possible that Ms. Miers, who must have faced a good deal of hard-core sexism in her career as a lawyer, might turn out to be something of a closet moderate, I do not find it very likely. One or two of my friends suspect the right wing outrage is all simulated to try to ease her passage through the Senate, but that seems unlikely. Instead, to use a phrase from another era, however, the Right seems to be tired of being "screwed on the rumble seat," and wants an avowed religious conservative to be anointed by appointment to the Court. I might point out to them that the President promised judges like Anthony Scalia and Clarence Thomas, and Harriet Miers strikes me as about as close to Clarence Thomas as anyone could be: a non whitemale from a conservative part of the country who has risen by meeting the needs of the white conservative establishment. (Roberts, meanwhile, seems to have a good deal in common with Scalia.) This is not, however, my primary concern today.
Instead, I want to focus on the coded and not-so-coded language the Administration is using to tell the religious right that Miers is just what the doctor ordered--and the ways in which certain favorite Presidential words are used to mean the opposite of what they say. The President's mantra is that he wants strict constructionists who will not legislate from the bench. In all the controversy about Dr. James Dobson's remarks about his conversation with Karl Rove, no one seems to have noticed that Dobson gave the code away. Here are excerpts from what he said on his radio program, in a conversation with a colleague.
The Reverend James Dobson discussed his conversation with Karl Rove about Harriet Miers on his radio show a few days ago. During the conversation he let more of the cat out of the bag than he perhaps intended regarding the code that is being used between the White House and its supporters. Initially, he said:
"Well, my reasons for supporting her were twofold, John. First, because Karl Rove had shared with me her judicial philosophy, which was consistent with the promises that President Bush had made when he was campaigning. Now he told the voters last year that he would select people to be on the Court who would interpret the law rather than create it and judges who would not make social policy from the bench. Most of all, the president promised to appoint people who would uphold the Constitution and not use their powers to advance their own political agenda. Now, Mr.. Rove assured me in that telephone conversation that Harriet Miers fit that description and that the president knew her well enough to say so with complete confidence."
Nothing too new there. But some time later, he dropped the other shoe.
"We did not discuss Roe v. Wade in any context or any other pending issue that will be considered by the Court. I did not ask that question. You know, to be honest, I would have loved to have known how Harriet Miers views Roe v. Wade. But even if Karl had known the answer to that, and I'm certain that he didn't because the president himself said he didn't know, Karl would not have told me that. That's the most incendiary information that's out there and it was never part of our discussion.
"One thing is clear. We know emphatically that Justices Souter and Kennedy and Breyer and Ginsburg and Stevens have made up their mind about Roe v. Wade by politicizing their decrees on that issue and others. They have usurped the right of the people to govern themselves and they imposed a radical agenda on this country."
Now it is important to note, in this connection, that Souter, Kennedy, Breyer, Ginsburg and Stevens were not on the bench when Roe v. Wade was initially decided. All they have done is to uphold it. But to Reverend Dobson, that alone qualifies as "imposing a radical agenda on this country," "usurping the right of the people to govern themselves," and, in effect, "making social policy from the bench"--exactly what President Bush has claimed his judges would not do.
In other words, Rev. Dobson seems to believe that when the President says he won't appoint judges who will legislate from the bench, he is saying he will appoint justices who will overturn Roe v. Wade. Observing 30-year old precedents is not part of the President's vision of strict constructionism.
Apparently, however, Dobson's signal wasn't clear enough. Yesterday the New York Times featured an op-ed by Matthew Scully, who apparently worked with Miers in the White House for four years. This, he says, is part of the role she played.
"It is true that Harriet Miers, in everything she does, gives high attention to detail. And the trait came in handy with drafts of presidential speeches, in which she routinely exposed weak arguments, bogus statistics and claims inconsistent with previous remarks long forgotten by the rest of us. If one speech declared X "our most urgent domestic priority," and another speech seven months earlier had said it was Y, it would be Harriet Miers alone who noted the contradiction."
This encomium will impress those who find the President's speeches to be models of factual accuracy and logical consistency, but others of us will wonder, for example, why Harriet Miers didn't point out to the President that he was continuing to argue that Saddam Hussein "refused to disarm" long after he had cooperated with UN weapons inspectors (one of whom just won a Nobel Prize) and long after we had discovered that he disarmed years ago, to mention just one example.
A few paragraphs later, Mr. Scully got down to the nitty gritty.
"It may be, in fact, that a details person is just what the Supreme Court needs right now. If anyone can be counted on to pause in deliberations over abortion cases, for example, and politely draw attention to small details like the authority of Congress and of state legislatures, or the interests of the child waiting to be born, it will be the court's newest member. As a justice, however, she will command the kind of respect that has nothing to do with being conservative, or liberal, or anything else but a person of wisdom and rectitude."
The second sentence definitely declares that Harriet Miers will be as conservative on abortion (or more so) than anyone now on the court--in other words, that she will vote to overturn Roe v. Wade. Surely it would not be out of place for curious Senators to call Mr. Scully, as well as Mr. Dobson, to ask him how he drew this conclusion?
The nominee, Scully says, is "of enormous legal ability and ferocious integrity, and in the bargain a gracious Christian woman only more qualified for her new role because she would never have sought it for herself." That, too, is code. There are, of course, many forms of Christianity, and many of them do not embrace the Administration or its policies; but in the vernacular of the current White House and its supporters, to emphasize that Ms. Miers is a "person of faith" and a "Christian woman" almost certainly is another way of saying that she both hold the President in the highest esteem (as other colleagues have already confirmed) and that she holds correct views on the major social questions of the day. The web site of her Church confirms its belief that those who accept Jesus Christ will be saved, and no others shall go to heaven. I would never have believed thirty or forty years ago that such beliefs would become a qualification for a seat on the Supreme Court. But so it is.
Afterword (October 17) : This from John Fund's Wall Street Journal column today, describing an October 3 conference call between religous conservative leaders (James Dobson among them) and two Texas judges who are friends of Miers: (reproduced for non-commerical use):
"Mr. Dobson says he spoke with Mr. Rove on Sunday, Oct. 2, the day before President Bush publicly announced the nomination. Mr. Rove assured Mr. Dobson that Ms. Miers was an evangelical Christian and a strict constructionist, and said that Justice Hecht, a longtime friend of Ms. Miers who had helped her join an evangelical church in 1979, could provide background on her. Later that day, a personal friend of Mr. Dobson's in Texas called him and suggested he speak with Judge Kinkeade, who has been a friend of Ms. Miers's for decades.
"Mr. Dobson says he was surprised the next day to learn that Justice Hecht and Judge Kinkeade were joining the Arlington Group call. He was asked to introduce the two of them, which he considered awkward given that he had never spoken with Justice Hecht and only once to Judge Kinkeade. According to the notes of the call, Mr. Dobson introduced them by saying, "Karl Rove suggested that we talk with these gentlemen because they can confirm specific reasons why Harriet Miers might be a better candidate than some of us think."
"What followed, according to the notes, was a free-wheeling discussion about many topics, including same-sex marriage. Justice Hecht said he had never discussed that issue with Ms. Miers. Then an unidentified voice asked the two men, 'Based on your personal knowledge of her, if she had the opportunity, do you believe she would vote to overturn Roe v. Wade?'
"'Absolutely,' said Judge Kinkeade.
"'I agree with that,' said Justice Hecht. 'I concur.'"