Excerpt Of The Day #2: John Fund Explains Why “Trust Me On Miers” Isn’t Going To Cut It

“Senate Judiciary Committee chairman Arlen Specter says he has no doubt Ms. Miers is taking “a crash course” in constitutional law. She will be primed with talking points and her compelling success story when the hearings begin. The presumption that she should be confirmed will weigh heavily on Republican senators who will be constantly reminded that the president has made dozens of good judicial picks for lower courts.

But that ignores the fact that every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:

After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. “Two,” Ike replied. “They are both on the Supreme Court.” He referred to Earl Warren and William Brennan, both of whom became liberal icons.

Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth. Chief Justice Burger concurred in Roe, and made clear he didn’t even understand what the court was deciding: “Plainly,” he wrote, “the Court today rejects any claim that the Constitution requires abortions on demand.”

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Gerald Ford personally told members of his staff that John Paul Stevens was “a good Republican, and would vote like one.” Justice Stevens has since become the leader of the court’s liberal wing.

An upcoming biography of Sandra Day O’Connor by Supreme Court reporter Joan Biskupic includes correspondence from Ronald Reagan to conservative senators concerned about her scant paper trail. The message was, in effect: Trust me. She’s a traditional conservative. From Roe v. Wade to racial preferences, she has proved not to be. Similarly, Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. “They even put his priest on the phone with us to assure us he was solid on everything,” Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.

Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. “This is a home run, and the ball is still ascending. In fact, it’s just about to leave earth orbit,” he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was “committed to interpreting, not making the law.” The rest is history.

Harriet Miers is unquestionably a fine lawyer and a woman of great character. But her record on constitutional issues is nil, and it is therefore understandable that conservatives, having been burned at least seven times in the past 50 years, would be hesitant about supporting her nomination.” — John Fund

*** Update #1 ***: Truthfully, I’m posting a little more of Fund’s column than I should. But, this is such important information about Miers’ conservative credentials that as many right-wingers as possible need to see it. From Fund:

“The scantiness of her philosophical record has led reporters to focus on the two years of her career where she had to take stands: her one term as a member of the Dallas City Council during 1990 and 1991. There she established a record as an advocate of good government, increased funding for the arts, and building a light-rail system. Her one moment of high drama came when she quieted an angry crowd alleging police brutality. She apologized to the protesters on behalf of the city and called the behavior of the officers “unprovoked and inexcusable.”

Reactions to her from her former colleagues were mixed. Craig McDaniel, a liberal council member, praises her ability to get along with diverse groups of people and tells the Dallas Voice, a gay newspaper, “This is as good as we would ever get out of a Republican administration.” Jerry Bartos, a conservative council colleague, rated her effectiveness at “zero” and called her “the consummate loner.” But Sharon Boyd, a longtime friend and GOP activist, says many conservatives resented her solely because she had remained a Democrat until 1988. Ms. Boyd calls Ms. Miers’s record on the council “very conservative.” Yet when pressed for examples, she could only offer Ms. Miers’s opposition to civil unions for gays and support for a constitutional amendment against flag burning.

On other issues, Ms. Miers’s record is one of initially supporting a conservative position and then abandoning it. She started out backing a plan to redistrict the City Council that had received the endorsement of two-thirds of Dallas voters in a 1989 referendum. When it appeared that plan would lose a court case on account of its alleged effect on minority representation, she backed a plan for single-member districts supported by liberals. “I formally debated her on the issue,” recalls Tom Pauken, a former chairman of the Texas Republican Party. “She was a liberal then. I don’t know about today, but in the last week all the liberals who’ve been on the council have been singing her praises.”

Similarly, Ms. Miers was originally part of a council majority that urged Congress to repeal the Wright Amendment, a law that restricts flights from Dallas Love Field. Southwest Airlines and free-market advocates had long attacked the restriction as favoritism toward American Airlines, which has a hub at Dallas-Fort Worth International. Ms. Miers reversed her position after 10 months and sponsored a resolution in favor of the Wright Amendment. She called her move “a triumph of reason over rhetoric” and cited two studies that claimed flying more planes out of Love would lead to traffic congestion. Most aviation experts dispute that conclusion.

Finally, a 1990 budget crunch forced the Dallas City Council to consider a property tax increase–its third in four years. Ms. Miers initially resisted the tax increase, then came around to the view that a property tax hike would be the fairest. The key vote came when the council voted 6-5 to add $900,000 to the budget proposed by the city manager as part of a 7% increase in the tax rate. Ms. Miers cast the deciding vote. Mr. Bartos, who had proposed an alternate plan for 5% across-the-board spending cuts on all departments except the police, was bitter that almost all of the proposed $900,000 budget increase was slated for library and arts funding rather than public safety.”

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