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The Politics of Stealth

“The shattered remains of our once-glorious legal tradition are littered with the opinions of stealth nominees chosen by Republican Presidents who asked us to trust them.”

I don’t know Harriet Miers personally. Neither do most pro-family leaders, Congressmen, or for that matter most Americans. And there’s the rub: President Bush’s latest stealth candidate for a seat on the Supreme Court is an unknown with no paper trail. For all we know she could have been in the federal witness protection program for the past twenty years.

Stealth politics is premised on the theory that the less information the opposition can glean about a particular nominee, the less likely they will be able to defeat her nomination. I am as supportive of anyone of seeing qualified judicial nominees affirmed, or at any rate at least ensuring that they receive a floor vote by the entire Senate. But there is a down side to stealth politics, and the nomination of Ms. Miers underscores the inherent limitations of such tactics: Even the President’s friends are left to guess at her qualifications.

John Roberts was called a stealth candidate, too, but after two years on the D.C. Circuit Court of Appeals, 39 Supreme Court arguments, and several law review articles, compared to the mole hill of Ms. Miers the paper trail of Judge Roberts looks like a massive mountain. Judge Roberts’ judicial philosophy was consistently reflected in his written opinions as a judge, echoed in his briefs written as a lawyer, and stated straightforwardly in his testimony before the Senate Judiciary -- and still doubts remain.

Harriet Miers’ judicial philosophy, as best we can discern, even now has not been fully formed, much less articulated. After an hour’s private meeting with her, Senator Sam Brownback, an influential member of the Senate Judiciary Committee and a staunch conservative, left frustrated at the lack of information and insight revealed. Like the rest of us, Senator Brownback was left trying “to gather little pieces of shreds of evidence” about who Harriet Miers really is and what she believes.

The factors weighing in favor of Ms. Miers may be summarized as follows: (1) President Bush, who has performed well with other judicial nominations, has said she is the best candidate for the job; (2) her friends assure us she is a devout evangelical Christian; and (3) Dr. James Dobson has endorsed her nomination. With all due respect, this is not exactly an overwhelming case for confirmation.

Merely being an evangelical Christian does not automatically qualify one for any position. Specific knowledge and skills are required for almost any job, and sitting on the highest court in the land is not just any job. Dr. Dobson’s endorsement, while admittedly weighty, was predicated upon the private assurances of Ms. Miers’ friends and colleagues, and her church affiliation. While these may be important factors, they do not provide assurance that she possesses the necessary skills and knowledge for the job, and they do not settle for most of us the question of her judicial philosophy.

President Bush, in what was intended to be the clincher in winning over his base, assured us he “knows her heart.” This phrase is a mushy, modern evangelical expression intended to vouch for an individual’s faith. It is not a phrase heard in the Roman Catholic or Orthodox traditions, and for good reason: it is entirely unscriptural. Loose language makes for muddled logic. It clouds our thinking and confuses the issue.

Scripture provides a clear example of the utter inability of man to truly know the heart. The good prophet Samuel, sent to anoint the next king of Israel, looked on David’s eldest brother, Eliab, who apparently presented an impressive outward appearance, and said to himself, “surely the Lord’s anointed is before Him.” But God chastised Samuel and instructed him that “man looks at the outward appearance, but the Lord looks at the heart.” In other words, man cannot see the heart; only God can.

While President Bush obviously knows Ms. Miers well, even he does not know her heart. He cannot be certain that she will stand firm under the intense fire generated against a Supreme Court justice, or how she will vote on particular issues that arise. His claim to know her heart, then, does not clarify anything; it only confuses the matter further.

Reduced to its essence, the President’s invitation is to simply trust him: This from a man who rode to reelection on the promise to appoint judges in the mold of Justices Antonin Scalia or Clarence Thomas. And whatever else Ms. Miers may be, no one has seriously suggested she is another Scalia or Thomas. (Neither is John Roberts, for all his many good qualities.)

For me, the stakes are too high to place blind trust in the President’s choice. The shattered remains of our once-glorious legal tradition are littered with the opinions of stealth nominees chosen by Republican Presidents who asked us to trust them: Warren, Brennan, Blackmun, Stevens, Souter, and O’Connor head the list. Indeed, I am hard pressed to think of a single stealth nominee who actually turned out to be a constitutionalist (though to be fair, the jury is still out on Chief Justice Roberts).

It is too late in the day in our nation’s history to play another round of Russian roulette with the rule of law.

Friends don’t let friends make weighty decisions in ignorance. Unless Ms. Miers can demonstrate unequivocally her judicial philosophy and qualifications for the office of Supreme Court Justice, her nomination should be withdrawn.

Mr. Crampton serves as Chief Counsel of the American Family Association Center for Law & Policy (CLP), a public interest-type law firm. The CLP=s web site is www.afa.net/clp. Mr. Crampton=s daily radio show, AWe Hold These Truths,@ can be heard on almost 200 radio stations nationwide. He can be reached at clp@afa.net.