The Danger After Miers


Harriet Miers’s withdrawal from her nomination to the Supreme Court may repair some of the serious cracks in part of Bush’s Republican base, but the largely overlooked key reason she should not have been the “swing vote” on the Court—as Sandra Day O’Connor was—remains. A basic criterion for Bush’s next nominee will be his or her willingness to defer to the president’s self-assumed authority, as commander in chief, to conduct the war on terrorism as he—along with Donald Rumsfeld and Dick Cheney—sees fit.

Integral, for example, to Bush’s conviction that neither the Congress nor the courts can overrule his supreme authority as a wartime president are the “special powers” he has given the CIA, which has become a lawless independent unit of this government that continues to expand its secret powers in ways that I’ll be detailing in future columns.

A preponderance of the press coverage of the Miers nomination focused on “cronyism,” including her fawning loyalty to the president—and her startling lack of any discernible background in constitutional law.

Now that she will no longer be followed by camera crews, much to her relief, not only will the next nominee’s views on the separation of powers be central to the forthcoming debate—in and out of the Judiciary Committee—but there is one more crucial point about the president himself as he decides on her replacement.

Most of the furor over Miers was centered on her by indignant Republican critics—while the Democrats were largely watching in grinning silence. But only George Will scathingly zeroed in on the principal cause of this disastrous nomination—the president’s fundamental ignorance on judging who should be a justice.

In his October 5 Washington Post column, syndicated around the country, Will—a conservative who listens to his own drum—told the naked truth about this president:

“He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their pre-presidential careers, and this president particularly is not disposed to such reflections.” (Emphasis added.)

Imagine George W. Bush confronted by these questions:

Why did it take so long for the Fourteenth Amendment to be interpreted by the Supreme Court to apply the Bill of Rights to the individual states and local jurisdictions, in addition to the federal government? And who was the justice who persisted in convincing his colleagues to accomplish, in large part, what some constitutional scholars—and this layman—call the “Second American Revolution?”

Also, Mr. President, why is the Fourth Amendment the most specifically detailed of all parts of the Bill of Rights? Why were these framers, and especially the citizen ratifiers of the Constitution in the states, so deeply concerned with protecting future Americans against government invasions of their personal privacy?

I am willing to bet that George W. Bush knows much less about the history and the very language of the Constitution than poor Harriet Miers. And that’s why he will take pains to find out if his next nominee will agree with him that only he has the power to revise or simply ignore American laws and international treaties we have signed.

This president is so fixated on his supremacy that he has pledged to veto the current defense appropriations bill if Congress passes John McCain’s amendment that would clearly prohibit the degrading, inhumane, systemic treatment of “detainees” (prisoners)—including the unmistakable evidence of American use of torture, and not only by the CIA.

In decrying Bush’s now failed nomination of Harriet Miers, the October 15 Financial Times (hardly a far-left newspaper) warned that her presence on the Court would “fundamentally alter the balance of power between the courts and the presidency on issues of war and terrorism.”

Before John Roberts was nominated, and then confirmed by the Senate, to be the new chief justice, he had demonstrated that he is stalwartly in support of the commander in chief’s unlimited authority by ruling to that effect in Hamdan v. Rumsfeld, denying basic due process to imprisoned terrorism suspects in Guantánamo.

Had Harriet Miers been on the Court, John Roberts would have had two votes. Keep in mind, moreover, when considering the next nominee, that should there be anything approaching another 9-11 here, the Supreme Court will be ruling on domestic internment camps, as in the fearful days of World War II.

As University of Chicago law professor Cass Sunstein, a prolific writer on constitutional law, says: The extent of Bush’s authority as commander in chief—which will also be determined by his successors—”is one of the huge underexplored areas of constitutional law.”

Whoever Bush next appoints will be instrumental in doing that exploring for a long time to come.

In Hamdi v. Rumsfeld (2004), rebuking the commander in chief for imprisoning an American citizen indefinitely—without charges or any other due process—Sandra Day O’Connor, writing for the Supreme Court, said to George W. Bush:

“We have long since made clear that a state of war is not a blank check for the president when it comes to the rights of American citizens.”

The new danger is that in the general applause over the return to Texas of the hapless Harriet Miers, the press and senators on both sides of the aisle will not be asking the next candidate sufficiently piercing questions on whether this, or any, president can cast aside the separation of powers in the name of a national security that changes the very nature of this nation.