Appointments to the U.S. Supreme Court
Responses to the nomination
of Harriet Miers
On 2005-JUL-01, Justice Sandra Day
O'Connor announced her resignation from the U.S. Supreme Court. She has delayed her
departure until her replacement is installed.
On 2005-OCT-03, President Bush appears to have broken his campaign promise to
nominate Justices for the U.S. Supreme Court in the mold of strict
conservative constructionists Antonin Scalia and Clarence Thomas. Instead he nominated White House counsel Harriet Miers
(1945 -) to
replace retiring Justice O'Connor. Although she has not left much of a paper
trail, she appears to be much more moderate than the most conservative
constructionists on the Court. This may well prove to be a serious
disappointment to religious and social conservatives who had hoped that the two
2005 additions to the court, would result in a major movement to the right.
Since a very large percentage of decisions are made by a 5 to 4 vote, it would
not take much of a shift to produce major changes.
About Harriet Miers:
If her nomination is
confirmed by the Senate, she would be only the third woman to serve on the
Court. Sandra Day O'Connor was the first; Ruth Bader Ginsburg was the second.
Miers was born in Texas. She has a undergraduate
degree in mathematics from Southern Methodist University, and graduated from
their law school in 1970. She served for two years on the Dallas City Council.
Miers has practiced in Texas as a corporate lawyer. She
was the first female president of the Dallas Bar Association and of the Texas Bar
Association. She was named by
President Bush when he was still Governor of Texas to the state's lottery
commission. Miers came to the White House during Bush's first term as White House
staff secretary, and later became deputy White House chief of staff. When
Alberto Gonzales became Attorney General, she was appointed as White House
counsel, the president's in-house lawyer.
She has been "...named one of the
nation's 100 most powerful attorneys on numerous occasions by the National Law
Journal as well as one of the 50 top woman attorneys."
Because of her previous roles as corporate lawyer
and White House counsel, it is likely that almost all of her memos and letters
will be subject to attorney-client privilege. Thus, they cannot be released to
the Senate Justice Committee who will be reviewing her nomination. It appears
that she has never written any legal articles which revealed her viewpoint on
any of the controversial topics of the day.
Positions that Harriet Miers has allegedly taken:
Her views on many key issues, such as personal privacy, affirmative action,
abortion access, equal rights
for sexual minorities, etc are not known in detail. However, some scraps of
information have surfaced:
|Political orientation: She has contributed to the election campaigns of
both Republicans and Democrats. During the late 1980s, she gave $1,000 to
two Democrats: Senator Lloyd Bentsen (D-TX)and
to Al Gore, when he ran for president. Since then, she had donated only to Republican
|Abortion access: Lorlee Bartos, who was Miers campaign manager in 1989 when she ran for Dallas
City Council, described Miers as having been "pro-choice in her youth."
But she underwent "a born-again, profound experience" which caused her to
oppose abortion access. 15 Miers
remains an evangelical Christian today. Ron Key has been Miers' pastor since the
early 1980s. His church is opposed to women's access to abortion. He left
Valley View Christian Church to organize a new church with Miers and others.
In 1993 she tried to have the American Bar Association (ABA) reverse
its decision to support the U.S. Supreme Court 1973 decision in Roe vs. Wade
-- the ruling which gave women the right to seek an early abortion. At the
time, the ABA members in Texas were seriously divided on the issue of abortion
access. Miers "came to believe that the national organization should not take
sides" on controversial topics. 7
In her 1993 speech before the Executive
Women of Dallas, TX, concerning abortion access, she said: "The
ongoing debate continues surrounding the attempt to once again criminalize
abortions or to once and for all guarantee the freedom of the individual
[woman's right] to decide for herself whether she will have an abortion."
That is not remarkable; it is merely a statement of facts. But the then
urged her listeners to recall that "we gave up...legislating religion or
morality....When science cannot determine the facts and decisions vary based
upon religious belief, then government should not act."
| Roles for women: Elaine Donnelly, president of the Center for Military
Readiness, allegedly stated that: |
White House counsel, Ms. Miers either approved of the Department of
Defense's illegal assignments of women in units required to be all-male,
which is still continuing in violation of the law requiring notice to
Congress in advance, or she was oblivious to the legal consequences of those
am very disappointed by the president's choice. Ms. Miers does
not have a judicial 'paper trail,' but her record as White House counsel is
a legitimate cause for concern. Democrats and liberals who were willing to
use the military for purposes of social experimentation have reason to be
World Net Daily, a
conservative Christian news source, stated that:
"Donnelly believes the actions of Miers could lead directly to a future court
ruling requiring women to register with the Selective Service for the draft
because they are now being, against the wishes of Congress, assigned to land
|Equal rights for sexual minorities: World Net Daily stated
"Donnelly also concludes that Miers approved the Bush administrations
retention of President Clinton's 'don't ask, don't tell' regulations, which,
she says, are different from the 1993 law passed by Congress.... during Miers
long affiliation with the American Bar Association, she submitted a 1999
report to the ABA's house of delegates that included recommendations
to...[enact] laws and public policy providing that the sexual
orientation of adults be no bar to adoption of children."
"Under the heading 'Family Law' and subheading 'Adoption,' the document
states: 'Supports the enactment of laws and public policy which provide
that sexual orientation shall not be a bar to adoption when the adoption
is determined to be in the best interest of the child'."
|International criminal court: World Net Daily stated that
her submission to the ABA's house of delegates also:|
recommendations to develop and establish an International Criminal
Court.....included, under the heading 'International Law and Practice', is a
recommendation for 'the development and establishment of an International
Criminal Court'." 18
Reactions to the nomination of Harriet Miers:
Response was not long in coming. CNN announced in its Breaking News service
by Email at 7:15 AM ET that "President Bush to nominate White House counsel
Harriett Miers to replace retiring Supreme Court Justice Sandra Day O'Connor,
CNN has learned."
Initial reactions came swiftly during 2005-OCT-03 & 04:
|Within a few hours, Wikipedia had published an article which referred to
media outlets' criticisms of Miers' nomination. The latter noted that she had
never acted as a judge, and had never argued a case before the U.S. Supreme
|Some commentators have criticized the nomination because Miers has never
served as a judge. All of the justices currently serving on the U.S., Supreme
Court were originally judges. "However, nearly a third of the 109 Supreme
Court justices in U.S. history were not judges, including Chief Justice
William Rehnquist...." 1
Fewer than half of the Supreme Court justices in the history of the U.S. had
spent time as a judge prior to being installed as justices in the high
court. This includes: "...25 practicing lawyers, nine attorneys general
or deputy attorneys general, seven holders of other Cabinet positions, six
senators, two members of the House of Representatives, three governors, two
solicitors general and two law professors." 3|
|Republican consultant Greg Mueller, who works for several conservative
advocacy leaders said: "There's every indication that she's very similar to
Judge Roberts -- judicial restraint, limited role of the court, basically a
judicial conservative." 4|
|Senator Minority leader Harry Reid (D-NV) had
recommended to Bush that he nominate Miers. He said: "I like Harriet
Miers. In my view, the Supreme Court would benefit from the addition of a
justice who has real experience as a practicing lawyer."|
|Senator Charles Schumer (D-NY) said: "There's
hope that Harriet Miers is a mainstream nominee." He said that he would
push for documents and pressure her to reveal her judicial philosophy.|
|The Covenant News Wire Service, a
Fundamentalist Christian news source, described Miers simply as a "feminist"
and as a "Democrat supporter." They suggested that her installation "....won't
do anything to reshape the nation's judiciary for years to come unless the
People learn the impeachment process."
|Adair and Allison of the St Petersburg (FL) Times commented:|
"President Bush's surprise nomination of White House counsel Harriet
Miers to the Supreme Court scrambled the political landscape on Monday.
Democrats were remarkably warm, and conservatives were unusually cool.
The upside-down politics had Democrats calling her 'a trailblazer for
women' and conservatives asking if she might be too liberal. Both sides
were uncharacteristically vague because Miers, a former corporate lawyer
and longtime Bush aide, has little public record.... Conservatives had
been hoping the president would pick someone with more clearly
articulated views on issues such as gay marriage and abortion, and whose
conservatism would be strident and unabashed."
|Dr James Dobson, founder and head of the fundamentalist Christian para-church
group Focus on the Family wrote:|
"President Bush pledged emphatically during his campaign to appoint
judges who will interpret the law rather than create it. He also
promised to select competent judges who will 'not use the bench to write
social policy.' To this point, President Bush's appointments to the
federal bench appear to have been remarkably consistent with that stated
philosophy..... On the other hand, one cannot know absolutely about
matters of integrity and philosophy until a jurist is given the
tremendous power and influence of their position. As Lord Acton said,
'Power corrupts, and absolute power corrupts absolutely.' Sadly, that
seems to have happened to Justices Souter and Kennedy. All we can say
now is that Harriet Miers appears to be an outstanding nominee for the
Supreme Court." 13
Responding to the generally negative response of
the Evangelical community to Ms. Miers' nomination, James Dobson devoted his
entire Focus on the Family broadcast of OCT-05 to an explanation of why
he has "...come out, initially at least, in favor of her nomination." He
referred to the nomination as being of "unprecedented significance,"
because he expects that the addition of Mier to the Supreme Court would
eventually lead to the overturn of Roe v. Wade and an end to legal abortion
access in the U.S. 20
|Jan LaRue, chief counsel for Concerned Women for America, a
Christian group that opposes abortion access and equal rights for sexual
minorities, said: |
"I regret that we couldn't come out of the box whole-heartedly
endorsing a known nominee. [Although Miers has done a good job for the
president] that doesn't in and of itself mean she's the best qualified
person to be nominated to the Supreme Court. There are so many known
people who could have been nominated."
|Jonathan Turley, a law professor at George Washington University,
commented: "This certainly smacks of cronyism. The most outstanding
characteristic of this appointee seems to be her long association with the
|Mary Cheh, a law professor at George Washington University, said: "She
has some features about her that are O'Connor-esque. She appears to be more
grounded in everyday experiences than the other people who serve on the
|Powerline, a conservative Blog stated: |
"I'm sure that she is a capable lawyer and
a loyal aide to President Bush. But the bottom line is that he had a
number of great candidates to choose from, and instead of picking one of
them -- Luttig, McConnell, Brown, or a number of others -- he nominated
someone whose only obvious qualification is her relationship with him."
|Captain Ed at the Captain's Quarters
" I'm certain that Harriet Miers is a fine
attorney in private practice and has performed admirably as one of
Bush's long-term aides. However, nothing in her career shows that she
has any remarkable experience or aptitude for this assignment. As Brant
at SWLiP (an attorney himself) points out, Miers came from a second-tier
law school with no law-review experience, no noticeable record of
scholarship or significant practice at constitutional law. That
describes thousands and thousands of fine attorneys around the country
with whom I would place my trust to sort out my personal legal
struggles. For a Supreme Court selection, that background at best can
only be called remarkably unremarkable." 10
|Right-wing News said: "Miers is a
Bush crony with no real conservative credentials, who leapfrogged legions of
more deserving judges just because she was Bush's pal.....This is
undoubtedly the worst decision of Bush's entire presidency so far."
|Rev. Barry W. Lynn, executive director of Americans United for
Separation of Church and States wrote: |
"It is vital for the senators to determine Miers' understanding of
the First Amendment. Miers has never been a judge, and it is imperative
that the judiciary committee uncover her judicial philosophy and her
views on the relationship between religion and government... [Senate
Judiciary] Committee members should push Miers to be forthcoming on her
understanding of constitutional issues."
|Usually, the Family Research Council
expresses opinions which are identical to those of Focus on the Family.
This time, they differed slightly. They are taking a wait and see position.
They stated: |
"In the days to come, Harriet Miers will
have the chance to demonstrate a conservative judicial philosophy. We
will be watching closely as the confirmation process begins, and we urge
American families to wait and see if the confidence they have always
placed in the President's commitment is justified by this selection."
|Operation Rescue is a conservative
Christian group dedicated to reducing or eliminating abortion access. Their president,
Troy Newman, said:|
"We must reject the nomination of Harriet Miers to the Supreme Court
of the United States. President Bush promised that he would appoint
strong constitutional constructionist to the Supreme Court in the mold
of Thomas and Scalia, but Miers is no Thomas or Scalia. We must be given
a nominee that will restore the protections of personhood to the
pre-born. If your head was about to be crushed, would you want to trust
you life to someone who will not state their position on your murder?
Bush was given one mandate by the American people in the last election
and that was to reform the Supreme Court. Reform does not come in a
brown paper bag." 16
Numerous visitors to the Operation Rescue web
site contributed their views. Most were disillusioned at President Bush's
|E.J. Dionne, a columnist for the Washington
Post, wrote: |
"She could face opposition from the right,
whose partisans devoutly wished for a nominee with strong judicial
credentials and a clear conservative record. Under other circumstances,
this might entice liberals into hoping Miers is a closet moderate. But
their instinctive mistrust of someone so close to Bush will keep many
liberals from coming her way....Miers has been thrust into a battle for
which her career as a Bush loyalist is more liability than asset, and in
which the clean slate she puts forward could be filled in primarily by
her opponents." 19
|According to Baker and Balz of the Washington
"Republican activists" who are angry at
President Bush's nomination of Miers to the Supreme Court, "confronted
the president's envoys during a pair of tense closed-door meetings. One
was led by Paul M. Weyrich of the Free Congress Foundation; the
other by Grover Norquist of Americans for Tax Reform. Total
attendance was approximately 185 activists. Many "...declared
they could not support Miers at this point, while columnist George Will
decried the choice as a diversity pick without any evidence that Miers
has the expertise and intellectual firepower necessary for the high
|AA News, an information source from
American Atheists commented that some conservatives:|
"...expressed frustration, citing the fact that groups like the
Federalist Society have spent over 20 years grooming prospective
candidates from elite schools with impeccable legal credentials to fill
vacancies on the Supreme Court. Religious right groups fear that the
Miers nomination is a 'missed opportunity' to replace the
moderate Justice Sandra Day O'Connor with a more strident ideologue in
the image of Antonin Scalia or Clarence Thomas. There are also concerns
that Mr. Bush may be risking 'a Souter,' referring to the move by
his father, President George H.W. Bush who nominated David Souter to
the high court. Justice Souter ended up becoming a disappointing swing
vote for many religious right advocates in a number of cases, especially
several having to do with the separation of church and state."
AA News reports allegations that key conservative religious leaders, like
James Dobson, founder and head of Focus on the Family, and Rev. Tim
Haggard, president of the National Association of Evangelicals
received phone calls from the White House prior to Miers' nomination. They
quote Eric Gorski of the Denver Post who wrote: "Haggard said he,
like Dobson, received a phone call from the White House before Miers'
nomination. Like Dobson, Haggard isn't talking about the conversation." The
Christian Science Monitor reported that Dobson originally waffled on
backing the Miers nomination, but changed his position "after extensive
lobbying by the White House." 22
|Jay Sekulow of the Fundamentalist Christian legal advocacy group,
American Center for Law and Justice, noted that Miers would be the first
evangelical Protestant on the Supreme Court since the 1930s. Sekulow said: "This
is a big opportunity for those of us who have a conviction, that share an
evangelical faith in Christianity, to see someone with our positions put on
the court." 22|
|2005-OCT-18: About Roe v. Wade: Allegations have surfaced that Miers indicated her
opposition to Roe v. Wade in 1989. This was the Supreme Court's decision in
1973 which granted women the right to early abortions. She revealed her
position by answering the questionnaire of "Texans United for Life,"
a pro-life group, while she was running for city council Dallas, TX. She
pledged her support for a constitutional amendment to criminalize all
abortions except those necessary to save the life of the woman. She said
that she would participate in "pro-life rallies and special events."|
|2005-OCT-19: Hearings: Her confirmation hearings will begin in the Senate
|2005-OCT-20: More on Roe v. Wade: Senator Herb Kohl (D-WI) met with Miers for about 45
minutes. She downplayed the significance of the 1989 questionnaire.
According to Kohl: "She made the point that it was at a different time for a different
purpose. And (she said) we should not read too much into that in terms of
where she might be on the issue of privacy, and a woman's right to choose.
She understands that when she comes before the committee, people will be
looking for more than broad statements...There's more that we need to know."
|2005-OCT-25: Presidential stonewall: Members of the Judiciary
Committee, both Republicans and Democrats, have asked President Bush for
documents which contain details of advice that Harriet Miers has given to
him. They expected that he would refuse to divulge some documents because of
executive privilege and lawyer-client privilege. However, President Bush
announced on OCT-24 that he would not release any documents at all which
related to the "decision-making process, what her recommendations were. That would breach very important confidentiality, and
it's a red line I'm not willing to cross." Sen. Charles Schumer (D-NY) said it appears
that the president was refusing access to material that is not shielded by attorney-client or executive privilege. Sen. Arlen
Specter (R-PA) head of the Judiciary Committee
said the panel had requested "nonprivileged documents." He
hoped to reach a compromise with the White House.
When her 1993 speech before the Executive Women of Dallas, TX became public, the most powerful conservative
religious groups rose in unison against her nomination.
|Wendy Wright of Concerned Women for America (CWA) said: |
"...her professional and civic life leaves us questioning whether she
chooses to reflect and advance the views of the group she's with at the
moment. Though she attends an Evangelical church known for its pro-life
position, during the same time period she advanced radical feminists and
organizations that promote agendas that undermine respect for life and
family. This drives us to rely upon her actions, her deeds, her words as
opposed to the endorsements of those who have worked with and known her.
Jan LaRue, CWA' chief counsel, said:
"We believe that far better qualified candidates were overlooked and
that Miss Miers' record fails to answer our questions about her
qualifications and constitutional philosophy. In fact, we find several
aspects troubling, particularly her views on abortion and a woman's
'self-determination,' quotas, feminism and the role of judges as social
activists. We do not believe that our concerns will be satisfied during
"Every time she quotes or cites women she admires, they're to the
left of Betty Freidan. We desire role models who have a strong record of
promoting and advancing constitutional principles. Miss Miers' record,
as reflected in her speeches, is of promoting a leftist agenda that
relies upon the courts to impose their views. We'd prefer to have
someone fond of quoting Margaret Thatcher or Antonin Scalia rather than
Barbra Streisand and Gloria Steinem. Some of Miss Miers' own comments
border on male-bashing."
"The record we know is a record that convinces us that Miers is not
even close to being in the mold of Scalia or Thomas, as the President
promised the American people." 25
|Bruce Hausknecht of Focus on the Family said: "Some of the statements seemed to be pro abortion, and even as far as saying that there
should not be a moral foundation for legislating laws, seemed to be in keeping with a liberal's point of view of the world."
|Tony Perkins of Family Research Council described her 1993 speech
"...very disturbing. Miss Miers' words are a close paraphrase
of the infamous Roe v. Wade decision. Her use of terms like
criminalize abortion to characterize the pro-life position and
guarantee freedom to describe the pro-choice position should have
sounded alarms in the White House during the vetting process. When we
defend the right to life, we hearken back to the Declaration of
Independence, not to some strictly sectarian view. Science has long ago
answered the question of when human life begins. The constitutional and
legal question is whether we are going to defend innocent human life
from lethal assault. This speech raises very troubling questions about
Miss Miers' views of constitutional matters."
She submitted her resignation as a candidate for
associate justice of the U.S. Supreme Court, saying that if she continued, the
problem over the release of documents could damage the presidency and the
country. President Bush reluctantly accepted her resignation. She remains as
chief counsel at the White House.
The following information sources were used to prepare and update the above
essay. The hyperlinks are not necessarily still active today.
- Steve Holland, "Bush picks Texas ally for high court," Reuters News
- "Harriet Miers Supreme Court nomination and hearings," Wikipedia, at:
- Linda Greenouse, "Not a judge? No problem," New York Times,
- Deb Riechmann, "Bush chooses Miers for Supreme Court," Associated Press, at:
- "Miers Supports Democrats," Covenant News Service, 2005-OCT-03, at:
- Bill Adair & Wes Allison, "On Miers: Democrats happy, Republicans leery,"
St Petersburg Times, 2005-OCT-04, at:
- "Who is she?" St Petersburg Times, 2005-OCT-04, at:
- Cliff Kincaid, "Will conservatives derail Miers?" News With Views,
- John H. Hinderaker and Scott W. Johnson, "A disappointment,"
Powerline Blog, 2005-OCT-03, at:
- Captain Ed, "My grudging support, such as it is," Captain's Quarters,
- "Americans United Urges Senate To Closely Examine
Miers' Views On Church And State," Americans United, 20050-OCT-03, at:
- Tony Perkins, "Wait and see," Family Research Council, Washington Update, 2005-OCT-03.
- Pete Winn, "Next Supreme Court nominee announced," Citizen Link,
Focus on the Famly, 2005-OCT-03, at:
- Dave Andrusko, "President Bush Nominates Harriet Miers to High Court," National Right to Life, 2005-OCT-03, at:
- Dave Levinthal, "Miers said to be on 'extreme end' of pro-life movement," Rominger Legal, 2005-OCT-03, at:
- "OR Will Not Support Miers to the Supreme Court," Press Release, Operation Rescue, 2003-OCT-03, at:
- Reactions to the Operation Rescue press release are at:
- Joseph Farah, "Mystery-woman Miers: New clues to resume. Bush pick supported International Criminal Court, homosexual adoptions, women in
combat, tax hike," World Net Daily, at: http://www.worldnetdaily.com/
- E.J. Dionne, "Bush's choice too cleaver by half. Court nominee won't
satisfy left or right," Washington Post. Published by The Toronto Star,
2005-OCT-05, Page A22.
- Stuart Shepard, "Dr. Dobson Explains Support for the Supreme Court
Nominee," CitizenLink special report, Focus on the Family, 2005-OCT-05.
- Peter Baker and Dan Balz, "Conservatives Confront Bush Aides. Anger Over
Nomination of Miers Boils Over During Private Meetings," Washington Post, 2005-OCT-06, at:
- "Miers nomination. Religious Right leaders receiving 'confidential' White House info?," A A News, 2005-OCT-07.
- Frederic Frommer, "Kohl: Miers downplays abortion answer," 2005-OCT-20,
Associated Press, at:
- David Espo, "Bush won't reveal private advice from Miers," Associated
Press, 2005-OCT-25, at:
- "CWA calls for Miers withdrawl," Concerned Women for America, 2005-OCT-26,
- Bill Wilson, "Miers' Withdrawal Greeted Warmly By Conservatives,"
Focus on the Family, 2005-OCT-28, at:
- Tony Perkins, "Miers' 1993 Speech Prompts More Questions," Family
Research Council, 2005-OCT-26, at:
Copyright © 2005 to 2009 by Ontario Consultants on Religious Tolerance
Latest update: 2009-JUL-17
Author: B.A. Robinson