Justice Grows to the Left

When Pres. Bush tried to assure his right-wing base that Harriet Miers would not change her judicial philosophy for the next twenty years, he made a horrifying promise. Luckily, it's one she herself won't keep. The right wing is frightened that an appointee might reach the Supreme Court and "grow to the left," as I heard someone say. That is, starting out with an open mind and no judicial experience, Miers might learn from being on the Court, and this learning would move her in the direction of social justice, tolerance, and loosened ideology.

The saving grace in America has been that such growth has occurred, particularly with Justices Souter and O'Connor, both of whom were staunch Republicans who grievously let down the right after they were confirmed. The counter example is Justices Thomas and Scalia, who have kept loyal to right-wing ideology inflexibly, no matter what the issue is at hand. Fortunately, they haven't been the prevailing force in many majority decisions. As an informed citizen, I checked their records. Routinely, despite their avowed philosophy of not legislating from the bench, Thomas and Scalia have tried to vote down federal and state laws more often than any two justices in modern history, according to informed legal commentators. Far from letting legislatures do their business without judicial intrusion, the right wing wants the opposite: to revolutionize social policy by judicial fiat.

In Ms. Miers we seem to have someone who is a blank slate, but whose private inclinations are tolerant, cautious, compassionate to the underprivileged, and politically flexible. On the surface her nomination is unfair, in that she seems to have a private agreement on ideology with the President and no public trail; therefore, she is immune to being examined. Matters are made worse by Pres. Bush's wink-and-a-nod comments implying that she has her marching orders and will be a loyal foot soldier. That demeans both Ms. Miers and the Court itself.

If indeed her flaw is rigid loyalty to the right wing, we are no worse off than if the President had nominated another Scalia. But if Miers grows to the left, which is to say, if she begins to empathize with America's vast, diverse population instead of the rich white males who have determined her fate so far, the country will be well served by her.

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