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In Which Harriet Miers Disrupts My Sleep

by Douglas Anthony Cooper

I had a dream about Harriet Miers the other night. (Yes, yes, I know: Cooper, get a life.) The dream — not my narrative unconscious at its most exciting, I’m afraid — involved George Bush withdrawing her nomination. That’s all I remember. However — and here is where this transcends a dreary “I had a dream that had nothing to do with sex” anecdote — I woke up in a bad mood. (You think I’m making this up. I assure you, if I were making this up it would be way less banal.)

Why, I wondered to myself, would such a dream be a baddream? After all, I’ve already weighed in on the Miers question — I believe I dubbed her a “joke.”Well, upon reflection, I’ve decided that she’s a good joke. A joke that deserves to be told. A joke at which, I strongly believe, we shall laugh last.

First of all, let’s consider what would have been the least funny nomination. Ladies and gentlemen, I present to you Janice Rogers Brown, very much on the shortlist, who is quoted as deprecating Franklin Roosevelt’s New Deal as “our own socialist revolution.” (I often wonder what people who hate the New Deal think of fondly. The Great Depression? The age of the robber barons?)

It’s worth concentrating upon those words, which would have done McCarthy proud. Now, the thing about a “revolution,” when appended to the word “socialist,” is that it tends to imply barricades and streets awash in blood. Especially in America, where the word “socialist” really means “communist” to the average non-socialist. The New Deal was, of course, bloodless, not a revolution, and not really socialist. It was, however, civilized.

For originalists like Judge Brown, of particular interest is “freedom of contract” — which, though not in the Constitution, is treated as if it were not only there, but a very pillar of our civic structure. The notion of freedom of contract comes from the Lochner decision of 1905, in which the Supreme Court decided in favor of a bakery owner, Joseph Lochner, who felt that a New York law limiting his bakers to a sixty-hour work week was unconstitutional.


“Lochner challenged the constitutionality of his conviction on the grounds that it violated his rights under the Fourteenth Amendment to the Constitution. In a 5-4 decision, a majority of the United States Supreme Court agreed with him, ruling that the New York law interfered ‘with the right of contract between the employer and employees concerning the number of hours in which the latter may labor.’

“This ‘freedom of contract’ is contained nowhere in the Constitution.”


The New Deal was predicated on a 1937 decision, West Coast Hotel v. Parrish, which effectively put the last nail in the coffin of this putative freedom. All seems a bit dull, doesn’t it, but the implications are huge. The Lochner court, which Justice Brown remembers with such nostalgia, was an enemy of many things much cherished by most Americans (not just by, you know, those revolutionary socialists):


“If ‘freedom of contract’ had still been important to the Court in 1937, laws like the Social Security Act, the National Labor Relations Act (which protects the right of workers to organize into unions) and the Fair Labor Standards Act (which includes the first minimum wage and bans child labor) would likely have been ruled unconstitutional violations of this right.”


This is the woman we might have had instead of Harriet Miers: a judge who explicitly endorses what many suspect that Bush has always wanted — it’s never been a question of “reforming” Social Security; it’s a question ofdestroying Social Security, and all of its attendant “socialist” baggage. The New Deal, for Bush and his ilk, was a raw deal; and those of you who own oil companies (or sweat shops) probably agree.So, if you’re in favor of deep-sixing Social Security, demolishing the minimum wage, banning unions, and bringing back child labor, then Brown’s your woman. (I like to think that even the most hardcore so-called conservatives would balk at the notion of child labor, but what I like to think has proved astonishingly ineffective when it comes to circumscribing their actual beliefs.)

Now, contrast Janice Rogers Brown with Harriet Miers. I have no doubt that Judge Brown is the superior intellect, with far far greater expertise in the area of constitutional law. In a debate, I suspect she could make puppy chow of poor Ms. Miers. But ask yourself: who would you prefer to have deciding cases on behalf of the average American?

Miers, unlike Brown, is nicely mushy. Think of those cooing love letters to George Bush, the best governor ever and the most brilliant man she’s ever met. Yes, I’m fairly certain Harriet comes from the “poor Joshua” school of jurisprudence.

(Justice Harry A. Blackmun famously wrote “Poor Joshua!” in a dissent, when the Supreme Court refused to find state officials responsible for not removing four-year-old boy Joshua DeShaney from the custody of a father who beat him so badly that he was permanently brain-damaged. This is often held up as an example of judicial “sentimentalism.”)

Call me sentimental: but mush trumps steel, sometimes, when it comes to justice.

While everyone is obsessing over Roe v. Wade, it’s worth noting that Miers has taken distinctly liberal positions on all sorts of fetus-neutral matters:


“As the first woman president of the State Bar of Texas and the Dallas Bar Association, Harriet Miers pushed for inclusion of women and minorities.”


Even though Janice Brown is both female and African-American, I suspect that’s not a very Janice Brown thing to do. And there’s this:


“When a black county commissioner was arrested after a physical altercation with an off-duty police officer who allegedly had spat a racial slur at him, more than 1,000 demonstrators marched on City Hall. Many feared violence until Harriet Miers, a first-term City Council member and local lawyer, spoke to the crowd. ‘If it means anything to you, I want to apologize,’ Miers said in her native Texas drawl. ‘I want to apologize to the African American community of this city for an unprovoked and unexcusable attack on one of their elected leaders.'”


In order to wring that kind of apology out of any of the other candidates on Bush’s shortlist, you’d probably have to resort to extraordinary rendition.

As for Roe v. Wade, that seems to be one area in which Harriet might actually have her mush under control. There’s one person who knows Harriet even better than Handsome George does: Justice Nathan Hecht, her occasionally romantic friend. And let’s look at what Hecht — himself an arch-conservative — has to say:


“‘What they really want to know is how’s she going to decide Roe v. Wade if it comes again,’ Hecht said of the case that led to legalized abortion nationwide. ‘And the answer is you cannot extrapolate (legal decisions) from religious feelings. If you could, the right wouldn’t be as nervous as it looks like they are.'”


And this:


“‘Yes, she goes to a pro-life church,’ Justice Hecht said, adding, ‘I know Harriet is, too.’ The two attended ‘two or three’ anti-abortion fund-raising dinners in the early 1990’s, he said, but added that she had not otherwise been active in the anti-abortion movement. ‘You can be just as pro-life as the day is long and can decide the Constitution requires Roe’ to be upheld, he said.”


And this:


“When asked if her personal opposition to abortion would give her sufficient cause to overturn the Supreme Court’s abortion precedent, Hecht said, ‘I think she’ll say they won’t.'”


Lastly, Your Honor, I’d like to present this summary of Harriet’s Collected Works:


“As president of the Texas bar, Miers also published regular columns about her priorities, offering some of the few glimpses — albeit vague ones — into her approach to the law.

“A common theme was her belief that the legal community should do more to assist people who feel shut out of the legal system, or who can’t afford to break into it.

“She pressed for more money to improve legal representation for indigent defendants and said root causes of crime — poverty, lack of mental and other health care, inadequate education and family dysfunction — must be addressed.”


Not only is that last bit not very Janice Brown, it’s not very George Bush. It’s what you’d call compassionate — a word that actually has meaning when liberated from the slogan “compassionate conservatism.”

This perhaps explains my dream. I don’t admire this woman, particularly; I certainly don’t respect her, intellectually; but I’m starting to like her. No, she may not have the nutcracker intellect of Janice Brown or Michael McConnell or Michael Luttig. In fact, I suspect she may well prove to be quite the opposite: a sentimentalist in the mold of Harry Blackmun. Which is fine by me. And, evidently, fine by my subconscious.

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