From the WSJ Opinion Archives
The Miers Testimony
President Bush last week expressed his confidence in the constancy of Supreme
Court nominee Harriet Miers, saying that "20 years from now she'll be the
same person, with the same philosophy," as she is today. White House aides
making the case for Miers, meanwhile, have been insisting that she is a reliable
conservative. Since she has no judicial record and has had little to say about
constitutional law, we can only guess at what her judicial philosophy might
be, if indeed she has one at all. But if she is a political conservative,
then she has not remained constant over the past 20 years.
We base this on a look at her testimony in Williams v. Dallas, a voting-rights case from 1989, when Miers was an at-large member of the Dallas City Council. Read over it and the impression that emerges is of a left-leaning centrist, not a conservative. (The testimony is here, as a five-megabyte PDF file, but we're not 100% confident that our server will be able to handle it. If it disappears, check back here for a new link as soon as we're able to provide one.)
The Drudge Report has picked up one aspect of this testimony: her declaration that she had refrained from joining "politically charged" organizations like the Federalist Society, even though she had been a member of the liberal Progressive Voters League. When the lawyer questioning her asked if the NAACP (of which she was not a member) was "in the category of organizations you were talking about"--i.e., "politically charged"--she answered "no." Notes Drudge: "In 1987, the NAACP launched a campaign to defeat the nomination of Judge Robert Bork to the Supreme Court; In 1989, the group organized the Silent March; over 100,000 protested U.S. Supreme Court decisions the group claimed 'reversed many of the gains made against discrimination.' "
Her description of her own positions on the City Council suggests that she was far less conservative than the White House would have its supporters on the right believe. She endorsed such fashionable liberal causes of the 1980s as divestment from South Africa (page 47) and the activities of a "Homeless Task Force" (page 49). She also recounts her efforts on behalf of welfare spending (page 49):
I have strongly advocated the restoration of the $200,000 dental program as a model program in terms of public partnership. I have supported the maternal nurse care that was eliminated, be restored. The day-care money that was deleted I have asked be restored because they principally benefit women and minorities in my view.
On the other hand, she says she opposed the formation of a "Police Review Board," even though according to the questioning lawyer it "was supported by at least a majority of the voters in the African-American community," because, she says, "I do intend to vote based on the best interests of the entire community" (page 48).
An interesting exchange occurs on pages 11-12:
Q: Can you think of any specific issues since you have been on the Council and specific Councilpeople that have demonstrated this--this conflict that you're describing, that you think makes it important to keep at-large representatives on the Council?
Miers: Well, I'll mention one which is--I'll mention it because it's the most recent and I remember it. But in our last session we took a vote, I believe it's the very last one, we had the issue of police protection by the City of Dallas at Joe Pool Lake. And the issue was whether there would be a presence of Dallas police at the facility. And the offer had been made, as it was presented to us, that Grand Prairie would offer that service to Dallas without expense to the city.
And the issue was raised by certain individual Councilmembers in whose district the lake is located, as well as southern sector representatives, where they felt that it was important symbolically to the southern sector of the City that police protection by the City of Dallas be visible so that the citizens in the southern sector recognize that the Council and the police understand that that's part of the community and there's a distinct responsibility there.
The contrary view was that the City didn't have any business in a tight budget year of spending money on something they really could get for free. And the Council was fairly well split on that issue.
And the two at-large members of the Council, Mr. Buerger and myself, both voted to support the southern sector representatives in their view that the presence of police was symbolic, was important to them and should be there.
Later (page 53), she says the vote was 5-4--which means Miers cast the deciding vote in favor of spending taxpayer money, purely for symbolic purposes, on something the city "really could get for free."
She also describes flip-flopping on a proposal that would have paid City Council members a salary of $19,000 a year rather than the $50 a meeting they had been earning (page 30):
Q: Ms. Miers, do you support the Council pay provision on the ballot?
Miers: I did on the ballot. I did not initially in the campaign, but I became convinced over the course of campaigning that that was an issue of importance in the minority community and also in areas of the community that felt the lack of pay was a disadvantage to the ability of people to serve.
This is reminiscent of Justice Sandra Day O'Connor's approach, in Grutter v. Bollinger (2003), to racial preferences in college admissions: She approved of them, but only if they are sufficiently vague, and claimed to be applying "strict scrutiny" while actually accepting at face value university administrators' bromides about "diversity." All of which, she added, would expire in 25 years.
Miers, of course, was acting as a politician, not a judge, so it was perfectly appropriate for her to take into account the interests and views of her constituents in forming her own opinions. But in the absence of a record on issues of constitutional law, it's understandable that one might look at her approach as a politician and worry that she, like fellow ex-politician O'Connor, may be inclined to put politics above principle in interpreting the Constitution.
On the other hand, a favorite recent O'Connor opinion among conservatives was her stinging dissent in Kelo v. New London, the case in which a five-justice majority upheld the use of eminent domain to transfer property from one private owner to another, even though the Constitution limits it to "public use." In her testimony, Miers didn't directly address the question of eminent domain. But she described a tour of a South Dallas community in which the homes were not to her liking:
The construction of housing that was large in number, close together, close to the street where there wasn't a place for children to play or really just seemed so compact that it didn't seem like it was planned properly to provide the kind of environment where people could really exist and have much of an existence.
The expansion of eminent domain that led eventually to Kelo came about because the court in decades past decided that combating "urban blight" was a "public use" for which the government could confiscate private property. Miers's rather condescending thought that people in small, densely packed homes don't "have much of an existence" leads one to wonder if, were she on the Supreme Court, she would respect the property rights of those South Dallas residents or others similarly situated.
There's one section of the testimony, however, that may bring cheer to conservatives who oppose or are uneasy about the Miers nomination. She tells the lawyer questioning her that she would not have run for the City Council if that would have allowed a minority candidate to win (pages 35-36):
Miers: . . . I know that in my own race, would not have run a--a minority running in my position, and I think the community had recognized that the at-large seats had been occupied by white representative from north Dallas and that that was not right and shouldn't happen.
Q: Okay. And had a--if we can use the term viable minority candidate filed for the position you filed for prior to the time you filed, you would not have filed, is that correct?
Miers: That's correct.
Q: And the reason for that, I take it, is that you recognize that historically you would have had a substantial advantage over that minority candidate in that race, isn't that correct?
Miers: No, I wanted to see minority representatives elected at large in this community. And I felt like the time was right that such a candidate could be elected, and I had other things to do.
If Miers still feels this way, perhaps she could step aside now in favor of a "viable minority candidate." Janice Rogers Brown, anyone?
(Carol Muller helps compile Best of the Web Today. If you have a tip, write us at opinionjournal@wsj.com, and please include the URL.)
Today on OpinionJournal:
- Review & Outlook: What our enemy thinks about Iraq.
- Peggy Noonan: How to bring the Miers nomination in for a safe landing.
- John Fund: Harriet Miers's nomination resulted from a failed vetting process.
- Patrick Wright: Hooray for the Michigan Supreme Court.
