- The Washington Times - Thursday, October 20, 2005

Supreme Court nominee Harriet Miers flunked her first Kodak moment with the Senate Judiciary Committee. Miss Miers’ 57-page response to a questionnaire exhibited shocking misunderstanding of constitutional principles. With nine Harriet Miers on the high court, the Constitution would be lacerated.

Elaborating on constitutional issues she confronted as a public official, Miss Miers declares: “While I was an at-large member of the Dallas City Council, I dealt with issues that involved constitutional questions. For instance, when addressing a lawsuit under Section 2 of the Voting Rights Act, the council had to be sure to comply with the proportional representation requirement of the Equal Protection Clause.” But the Supreme Court has repudiated the idea that equal protection mandates proportional representation.

Indeed, racial gerrymandering to secure a quota of minority victories has been held unconstitutional. Proportional representation is championed by Professor Lani Guinier, once nominated by Bill Clinton as assistant attorney general for civil rights. Mr. Clinton abandoned Miss Guinier because he believed her position was “antidemocratic and very difficult to defend.”

Miss Miers’ error on the constitutional status of proportional representation is like a doctor mistaking an arm for a leg.

The nominee was equally off-base in seeking to differentiate the roles of legislators and judges. The Supreme Court twice held flag desecration protected expression under the First Amendment in Texas v. Johnson (1989) and United States v. Eichman (1990), with Associate Justice Antonin Scalia voting with the majority in both cases. Yet the City Council on which Miss Miers sat voted to prohibit flag burning. She explains: “The council was free to state its policy position, we were against flag burning. The Supreme Court’s role was to determine whether our Constitution allows such a ban.”

But under Article VI of the Constitution, all state and federal officers “shall be bound by oath or affirmation, to support” its obligations. Legislators and executive officials are obliged to consider the constitutionality of measures under contemplation. Bills are routinely opposed in Congress because of constitutional questions. Presidents veto legislation over constitutional doubts. In sum, contrary to Miss Miers, the Supreme Court is not the only institution entrusted with adherence to the Constitution.

Miss Miers’ celebration of the right of lawmakers to disregard constitutional principles until called to account in litigation is reminiscent of Massive Resistance to Brown v. Board of Education (1954). Southern legislators and governors insisted on a right to defy the desegregation principle of Brown until threatened with contempt of court in actual litigation. The consequence deferred full implementation of the Fourteenth Amendment for two decades. Constitutional rights would be empty vessels if they were honored only in courts because lawsuits are lead-footed and expensive.

Legislative self-restraint and executive self-restraint are as essential as judicial self-restraint, a proposition President Bush has scorned. The Bush White House, with Miss Miers occupying prime real estate, has generally embraced the principle that presidential powers are unlimited unless and until the Supreme Court says otherwise, for example, rejecting Mr. Bush’s outlandish assertion of power to detain indefinitely any American he finds is an illegal combatant on his say-so alone.

The nominee’s excessive infatuation with stability in the law and aping precedents was also misguided. She says, ” ‘Judicial activism’ can occur when a judge ignores the principles of precedent and stare decisis. Humility and self-restraint require the judiciary to adhere to its limited role and recognize that where applicable precedent exists, courts are not free to ignore it.” That assertion obtains for lower courts, but not the Supreme Court. Otherwise, constitutional law would soon resemble a petrified forest.

As Justice Louis D. Brandeis amplified, the Supreme Court should be open to reconsidering constitutional precedents because a mistake can only be overcome by the supermajorities required for amendments: “But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.”

In defending judicial independence, Miss Miers decried “unduly criticizing judges merely because we disagree with the result in a particular case.” But sustained and unrelenting criticism of Supreme Court decrees are the lifeblood of enlightened law. The odious “separate but equal” doctrine of Plessy v. Ferguson (1896) was assailed for decades by the NAACP and other organizations before it was overruled in Brown. The court has reversed church-state cases in the wake of intellectual pummeling. As Justice Robert Jackson reminded, the high court is not final because it is infallible.

Life tenure ensures federal judges will not bend because retaliation is feared. They may not be impeached for unpopular rulings. But neither judges nor any other public official should enjoy a ceiling on sharp criticism of their decisions. Miss Miers’ umbrage at too much for too long smacks of the Supreme Court’s arrogant refusal to re-examine the Roe v. Wade abortion decree in Planned Parenthood v. Casey (1992): “Liberty finds no refuge in a jurisprudence of doubt. Yet 19 years after our holding that the Constitution protects a woman’s right to terminate her pregnancy in its early stages, that definition of liberty is still questioned.”

Harriet Miers remains her own worst enemy for ascension to the Supreme Court.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.

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