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Wednesday, October 12, 2005  

Opinion: Miers' support for civil rights not enough

I recalled a quotation that applied to Harriet Miers' situation soon after President George W. Bush nominated her to fill the remaining open seat on the U.S. Supreme Court. I located the prescient remark yesterday.

"Even if [Judge Carswell] is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they -- a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there." Sen. Roman Hruska (R-Nebraska), defending, in 1970, failed Nixon-nominee, Judge G. Harold Carswell, against criticism that he was "mediocre."

Though he had spent most of his career as a jurist, Judge Carswell's nomination to SCOTUS was not confirmed, mainly because of his white supremacist views. He was again the focus of controversy in 1976 when he was accused of soliciting sex from another man in a public restroom in Atlanta.

I can't for a moment deny that many lawyers, perhaps most, are mediocre. But, I don't believe that is a reason to elevate mediocre legal professionals to important judgeships. The most recent confirmation of a Supreme Court nominee without of a record of analytical thinking, and, with a career of being a token and yes man, has proven that mediocrity matters. Clarence Thomas has made no meaningful contribution to American jurisprudence, even while warming a seat on SCOTUS.

President Bush's nomination of Miers is an symptom of his psychology. He is a person who trusts mostly those he considers his friends. That singular attribute, 'my gal Harriet,' is reason enough for him to have nominated a woman with even less of a history of making difficult decisions than the recently displaced former chief of FEMA, Michael Brown, another mediocre lawyer. Though collegiality is appreciated on the Court, its business is analysis of the most significant issues of our times. Miers' largely blank paper trail provides little evidence that she has the ability to do the work expected of a justice on the Supreme Court.

A correspondent e-mailed me news of Miers supporting a civil rights challenge in Dallas, and, supposing divestment from corporations that supported the South African government during apartheid. He wondered if the evidence of her concern about racism, an issue I care about deeply, would sway me. The article from the Chicago Tribune (registration required) is revealing.

WASHINGTON -- In what appear to be some of her only public statements about a constitutional issue, Supreme Court nominee Harriet Miers testified in a 1990 voting rights lawsuit that the Dallas City Council had too few black and Hispanic members, and that increasing minority representation should be a goal of any change in the city's political structure.

In the same testimony, Miers, then a member of the council, said she believed the city should divest its South African financial holdings and work to boost economic development in poor and minority areas.

Miers' thoughts about racial diversity placed her squarely on the progressive side of the 1990 suit, which was pivotal in shifting power in Dallas politics to groups outside the traditional, mostly white establishment.

Some constitutional scholars say that if Miers were to embrace the same views as a high court justice, she would fall more in line with the court's pragmatic, moderate wing than with its doctrinaire extremes.

"There's an acknowledgement in her comments that race matters and is relevant, and from a fairness standpoint, we should acknowledge the impact of a particular political structure on voters of color," said George Washington University law professor Spencer Overton, a voting rights expert. "It's not unlike something you could see Justice Sandra Day O'Connor saying. A rigid quota system may be bad, but diversity is a compelling interest, and we want institutions to reflect society as a whole."

Though these instances of Miers actually opening her mouth and saying things that mattered occurred 15 years ago, they may indeed be signifiers that she is not one of those people who insist that race is no longer an issue in determining how Americans live. I was pleased to be informed of her willingness to confront the powers that be in Dallas, which had a minority population of 40 percent, but next to no black or Hispanic public officials at the time. But, this evidence of good works must be considered with the rest of her record. Because of the paucity of evidence of much of anything in that record, I must agree with the general consensus. Miers is too much of an unknown to elevate to the highest court in the land.

Reasonably related

~ Washington Post editorial writer Eugene Robinson says he is bewildered by the Miers nomination.

~ Robinson's colleague Richard Cohen thinks the president is sending us a message about abortion, using a peculiar code.

11:15 PM