At first I didn't know what to think about President Bush's nomination of White House counsel Harriet Miers to be an associate justice of the Supreme Court. She certainly was not among the people that I expected Bush to select for the high court. But then conservative commentators and columnists -- bless their hard-wired hearts -- came down on Miers like tons of bricks in free fall. Thus I was visited with the following revelation: If Miers is capable of causing the right to weep, wail and gnash its teeth, she can't be all bad.
They certainly are showing her no mercy. Treatment once reserved for those of progressive political persuasions is being directed toward her. You know the kind of attention I mean: belittling her qualifications, putting down her accomplishments, ascribing values to her that are all out of proportion to known facts, deriding her as a crony and diversity's child -- an affirmative action baby, so to speak.
Lest the conservative descent into classism go too far, however, it's worth bearing in mind that televangelist Pat Robertson is a 1955 graduate of Yale Law School. 'Nuff said? Well, not quite. Miers hasn't even completed her round of grip-and-grin sessions on Capitol Hill and Bush's conservative base -- at least those among the pontificating class -- is having at her as if she's Justice David Souter in drag.
But it's not just the right that's revolting (and in more ways than one). Journalists are flyspecking her religion as if how and where she worships contains valuable clues about how she might rule on abortion or other issues that stir the souls of the political right and left. "Her abiding faith in Jesus" and membership in a church where she was baptized as an adult may have shaped her personal values, The Post reported this week. Duh. That statement could also be applied to millions of other Christians in this country, from Catholics and Episcopalians to Baptists and Pentecostals.
This may put me outside of the journalists' club, but plumbing the pamphlets and literature in Miers's Valley View Christian Church in Texas and conducting interviews with its members for insight into her personal views takes me, both as a consumer of news and as a co-religionist, to a place I need not go. I would just as soon wait for the public hearings, at which a duly sworn Miers can speak for herself.
Would that her problems were all from the right and the media, though. In the eyes of some of my friends on the ideological left, a Bush nominee is by definition one who will lead the court on a forced march back into the past. To them and to all who regard Miers's possible elevation to the Supreme Court as a dramatic and irreversible change in the country's direction, I humbly offer this thought: Chill. Turn down the apocalyptic rhetoric.
Neither a Justice Harriet Miers nor the Supreme Court itself has the power to bend this country to its will. True, the high court interprets the law and is the final arbiter of what the law means. But a court ruling is not necessarily the last word. History is full of examples of Congress's passing new laws, revising old statutes and even changing the law's meaning or scope as interpreted by the court, as Hofstra Law School professor Leon Friedman has observed.
Some Supreme Court decisions take longer to undo, of course. The 13th and 14th amendments overturned the awful Dred Scott ruling. And the 11th, 16th and 26th amendments all reversed court decisions. Constitutional amendments take time and, yes, they usually aren't successful. But they can be adopted if support is there in Congress and the states.
As Friedman noted, Congress in the past 20-plus years has "overruled" several Supreme Court decisions in the civil rights area. It did so in 1982 by amending the Voting Rights Act to overrule a narrow Supreme Court holding in Mobile v. Bolden. Congress also acted in 1988 and again in 1991 to reverse Supreme Court-decided cases that narrowed rights.
The 1993 Joint Committee on the Organization of Congress also noted a study by professor William Eskridge Jr., finding that between 1967 and 1990, Congress overturned 124 Supreme Court and 220 lower court decisions interpreting federal law. "The Civil Rights Act of 1991 alone overrode nine Supreme Court decisions that had narrowed previous interpretations of law," the report said.
Why this trip down memory lane? Because, as I tried to suggest in an earlier column on Bush's judicial nominees ["Democrats Are on the Wrong Battlefield," op-ed, July 23], the true battleground is not the White House that nominates federal judges and justices but rather the hearts and minds of the people who send representatives to Congress. Neither a justice nor a judge can reach the bench without the Senate.
Judicial errors and excesses -- even those committed by a court tilted heavily to the right -- can be corrected, provided there is strong public support and a national consensus represented by votes on Capitol Hill. That's where, let's face it, the forces of progressive politics have been losing ground. Red and blue states: That's also where the heavy lifting must be done. Harriet Miers is a Washington phenomenon, a convenient proxy for Bush's problems. Good political theater. But she's not the real challenge to progress in America -- not by a long shot.