Supreme Court Is Leaning Right - Forbes.com

Supreme Court Is Leaning Right - Forbes.comSupreme Court Is Leaning Right
Oxford Analytica, 10.07.05, 6:00 AM ET

On Oct. 4, President George W. Bush defended the qualifications of Harriet Miers, his nominee to replace retiring Justice Sandra Day O'Connor on the Supreme Court. The court remains at the center of major controversies over speech and religion, criminal prosecutions and the government's powers in the "war on terror." Miers' confirmation, which seems likely, will have a significant impact on these issues.

President Bush has reached outside the usual list of candidates to select a Supreme Court nominee with a limited public record and no judicial experience. This has inspired attacks on her qualifications from both liberals and conservatives concerned about the opacity of her record and ideology. However, three elements of Miers' biography have emerged that may shed light on her background, ideological leanings and probable voting record on the court:

Legal Experience: She earned her law degree from Southern Methodist University, a relatively undistinguished law school. She had a productive career in Texas commercial litigation, but her legal practice did not include constitutional law. She has only served as White House counsel since November 2004. This provides an opening for opponents from across the political spectrum, who may argue that she is unqualified.

Public Service: She has undertaken considerable professional service, and to a lesser extent public service, for the American Bar Association, the Texas state bar and the Dallas City Council. She took relatively liberal positions during her work on various commissions and her run for elected office. This has inspired criticism from conservatives who fear she may be a closet moderate-liberal.

Conservative Credentials: She is extremely close to President Bush and loyal to his Administration. She is also a born-again Christian from Texas. Since rediscovering her faith in the late 1970s, she has expressed increasingly conservative positions. Therefore, she is likely to hew fairly closely to right-wing principles.

Miers' prospects for confirmation are good. Only united Democratic opposition in the Senate, coupled with several Republican defections, could block her appointment successfully. It is likely that a fair number of Senate Democrats will offer their support. Given Miers' limited public record, the future ideological balance of the court remains uncertain.

The key to gauging her impact on the court is to compare Miers with her predecessor, O'Connor. O'Connor's credentials as a moderate can be overstated, and Miers is unlikely to be as reliably conservative as Justices Antonin Scalia and Clarence Thomas. Nevertheless, she may be closer to the court's right wing than her predecessor. Examining recent cases decided by a 5-4 majority, in which O'Connor served as the moderate swing vote, may suggest how Miers would affect the court. In several cases, it is likely that replacing O'Connor with Miers would change the majority and produce a more conservative outcome.

History suggests that relatively inexperienced justices sometimes alter their views significantly with more time on the bench. Miers' apparent lack of familiarity with constitutional jurisprudence, outside her limited tenure as a White House lawyer, raises the possibility that her outlook may be malleable.

The nomination of Miers, and Roberts's recent confirmation, may represent only the beginning of a period of transition on the court. Until the death of Chief Justice William Rehnquist, the same nine justices had served together for 11 years. Many, such as 85-year-old Justice John Paul Stevens, are in their final period of service on the court. The replacement of a liberal justice, such as Stevens, with a mainstream conservative would herald a more significant shift on issues such as abortion and federalism.

Miers' lack of judicial experience and low public profile have created uncertainty about her ideological orientation. However, her nomination represents a potentially significant right-wing shift for the court, which may have the greatest impact on controversial social issues, such as abortion.