Bush's words saddle
Miers:
'She's not going to
change'
By Tony Mauro, OP-ED
USA Today.com from the Web, October 10, 2005
Have you changed in the past 20
years? I hope so, and I don't mean that in a negative way. Think
back to 1985, and chances are that you are different today in very significant
ways.
I know I am, and certainly President Bush is. Which is why it was so
interesting last week when the president insisted that his Supreme Court nominee
Harriet Miers would not change if she became a justice.
"I know her well enough to be able to say that she's not going to change, that
20 years from now she'll be the same person with the same philosophy that she is
today," Bush said at his news conference Tuesday, adding later, "I don't want to
put somebody on the bench who is this way today, and changes. That's not
what I'm interested in."
I hope Bush was not stressing this point to combat the old stereotype of fickle
femininity. It is far more likely that he was trying to telegraph to
conservatives that Harriet Miers is no David Souter.
Named to the Supreme Court by Bush's father in 1990, Souter was billed as a sure
conservative, but he turned out to be a solid vote in favor of abortion rights,
gay rights and affirmative action. Souter might never have been as
conservative as people thought he was in the first place, but he has come to be
viewed as the latest in a long line of justices who change in ways that
surprise, and disappoint, the presidents who appointed them. Liberals Earl
Warren, William Brennan Jr. and Harry Blackmun were all Republican appointees.
Legend has it that President Eisenhower, when asked to list his biggest mistakes
as president, said both of them were sitting on the Supreme Court: Warren
and Brennan.
President Truman, whose appointees to the Supreme Court drew the same charge of
cronyism that we've been hearing in the past week, once harrumphed, "Whenever
you put a man on the Supreme Court, he ceases to be your friend."
That, in part, is why the Constitution's framers gave justices life tenure — to
enable them to rule wherever the law and the Constitution led them, without
obligation or fear of political reprisal. Former Republican president
Gerald Ford recently paid tribute to John Paul Stevens, his only appointee to
the Supreme Court, who is also far more liberal than Republicans expected.
"He has served his nation well," Ford said of Stevens, "with dignity, intellect
and without partisan political concerns."
The late chief justice Earl Warren — admittedly not a role model for Bush — once
said he could not imagine how someone "could be on the court and not change his
views substantially over a period of years ... for change you must if you are to
do your duty on the Supreme Court."
Bush clearly rejects that notion, as he has the right to do, hewing closer to
the line articulated by Justice Clarence Thomas, his father's other Supreme
Court nominee. "I ain't evolving," Thomas said early in his tenure, and by
and large he has not. Thomas has won respect for his consistency over
time.
Nonetheless, by promising so explicitly that Miers would not change during her
tenure as a justice, the president might have unintentionally guaranteed that
she would always be viewed as his emissary on the court, not as an independent
thinker. Whenever she votes for or against the position of the Bush
administration, it will be portrayed as either blind allegiance or betrayal —
neither an appealing characterization.
Lyle Denniston, an esteemed blogger on the Supreme Court, wrote last week that
Bush's comment amounts to mortgaging her future, saddling her with an
unprecedented "burden of loyalty." In passing, by the way, the president
said he is sure that Chief Justice John Roberts also will not change.
Bush's assurance might also, in the end, complicate Miers' already difficult
confirmation process by adding another layer of questions to answer. In
addition to ascertaining her views on major constitutional issues, senators will
now likely also want to know whether she has the independence and
inquisitiveness to change those views — even if it means going against her
friend and benefactor, President Bush.
Tony Mauro is the Supreme Court correspondent for American
Lawyer Mediaand Legal Times. He also is a member of USA TODAY's board of
contributors.
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