Washington Blade - October 28, 2005
Chris Crain

THE SUPREME COURT nomination of Harriet Miers is facing the perfect political storm.

Buffeted by stinging criticism from the right and the left, the White House strategy for Miers to sail through the Senate is in tatters. Her only reliable public defender is a politically weakened president. How perfectly perverse that Karl Rove is distracted by the prospect of an indictment just when we need him the most.

Rumors swirled liked vultures around Washington this week that she would withdraw her nomination in advance of hearings set to begin Nov. 7 before the Senate Judiciary Committee.

Someone somewhere needs to throw Harriet Miers a life preserver.

Why? Because it is virtually unthinkable that her replacement would be anything but a comparative disaster for gay Americans, people with HIV/AIDS and anyone who cares about civil rights and civil liberties.

HARRIET MIERS IS no champion of gay rights or the right to privacy, mind you. Her skimpy public record cuts both ways on almost all the important legal issues.

In 1989, in a successful run for the Dallas City Council, Miers told a gay rights group she agreed that "gay men and lesbians should have the same civil rights as non-gay men and women."

In the same survey, however, she contradicted herself by saying she did not support repealing the Texas sodomy law, which made sodomy a crime only if the sexual partners were of the same gender.

On the one hand, she told the gay group she supported "a legislative solution" to discrimination in housing and the workplace against people with HIV, an especially pressing problem in the late '80s.

But in the same campaign, she told the Dallas Eagle Forum, an anti-gay group, that she opposed legislation that would "force" property owners and employers to accept people with AIDS.

After a private meeting with Miers two weeks ago, Sen. Arlen Specter (R-Pa.), who chairs the Senate Judiciary Committee, told reporters that she had agreed with the Supreme Court's 1965 landmark ruling in Griswold vs. Connecticut. In that case, the court held that a "right of privacy" - which does not appear in the actual text of the Constitution - prevents the government from banning condom sales.

The Griswold decision has since been applied to stop government interference into other areas involving very private, intimate decisions, including whether to terminate a pregnancy (Roe vs. Wade) or have private, consensual sex (Lawrence vs. Texas).

Miers switched course again, however, phoning Specter the next day to say he had misunderstood her and she hadn't taken a position on Griswold and privacy rights.

ALL OF THIS zig-zagging on the difficult social issues that have come to dominate Supreme Court confirmations has ideologues on all sides in unaccustomed positions.

Social conservatives are fuming that their president didn't select a more predictable nominee, and liberal groups are expressing concern with all the vagaries of Miers' public statements.

But if Miers were to be confirmed, she certainly wouldn't be the first justice to be so maddeningly moderate on such emotional minefields. In fact, Sandra Day O'Connor, the woman she's been picked to replace, charted a remarkably similar course.

Amid all the carping and biting personal attacks, it's as if all those who praised O'Connor for being such a wise moderate, swing-voting trailblazer have forgotten what one of those looks like.

It was O'Connor, after all, who voted with the 5-4 majority in 1986 to uphold Georgia's sodomy law in Bowers vs. Hardwick, but then voted with the 6-3 majority 17 years later in Lawrence to strike down the sodomy law in Texas. Even then, she refused to join in overturning the Bowers ruling.

O'Connor voted with court majorities to uphold the First Amendment right of the Boy Scouts and Boston St. Patrick's Day parade organizers to exclude gays. But she also voted with the 6-3 majority in Romer vs. Evans, the first landmark gay civil rights win, which struck down an anti-gay amendment to the Colorado state constitution.

She voted with the dissent in the case that established HIV was covered by the Americans with Disabilities Act, but she wrote separately to say the law might protect some of those living with the AIDS virus.

ALL INDICATIONS ARE that Miers would also be maddeningly moderate, rejecting the knee-jerk ideologues on the right even as she splits the baby on issues where gay Americans would hope for more clearer court protection.

But does anyone honestly believe that George W. Bush might nominate someone with a clearer record of supporting gay rights if Miers is tanked by Senate conservatives?

In fact, the more we learn about Harriet Miers, the more open-minded she seems.

Take her 1993 speech to the Executive Women of Dallas, in which she warned against mixing law and religion, and specifically cited abortion as an example.

"Legislating religion or morality we gave up on a long time ago," she said.

Of course, the Supreme Court reached the exact same conclusion (without O'Connor's vote) in Lawrence, and the highest court in Massachusetts invoked the same idea to strike down marriage laws that exclude gay couples.

Does that mean Miers would vote similarly on gay marriage? The odds are certainly better than they were with O'Connor, who went out of her way in Lawrence to say that states could justify marriage laws that treat gays differently.

Miers' qualifications also compare favorably to the woman she would replace.

O'Connor was elected to the Arizona state senate and rose to become its first female minority leader, but she was only a judge on a mid-level state appeals court when Ronald Reagan nominated her.

Miers was elected to an at-large post on the Dallas City Council, representing a larger and more diverse constituency than O'Connor's. She was also a trailblazer in an even more conservative state. She's also held position of enormous responsibility the last five years, including a stint as White House counsel.

Does any of this mean Miers shouldn't be subjected to close scrutiny in her Senate hearings? Of course not.

But if Democrats, progressives and gay rights activists can see past their hatred for Bush long enough to take a look at the future of the Supreme Court, they'll work to save the Miers nomination before it sinks.

051028
WB051012

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