With Miers, Bush "has delivered on his promise of another Clarence Thomas"

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http://www.philly.com/mld/inquirer/news/editorial/12911979.htm

Posted on Sun, Oct. 16, 2005

Protect court against a stealth revolution
Bruce Ackerman is a professor of law and political science at Yale University


Despite conservative cries of betrayal, President Bush is a man of his word. He has delivered on his promise of another Clarence Thomas.

At the time of Thomas' nomination in 1991, his only obvious qualification was his success in breaking the glass ceiling blocking the ascent of his fellow blacks. He was a stealth candidate, whose views were known only to a chosen few within George H. W. Bush's administration, which sought to reassure right-wing activists that they were getting the real thing. Simply shift race to gender, and it becomes clear that the President has taken a page from his father's playbook in nominating Harriet Miers.

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Conservatives are after bigger game this time around. They have never forgiven the Senate for rejecting Robert Bork after he proudly denounced Roe v. Wade at his Judiciary Committee hearings. They believe, correctly, that the confirmation of a Bork II would signal the court that the country was ready for a right-wing revolution in constitutional law. Thus far, Clarence Thomas and Antonin Scalia have only sketched out their radical vision in dissents. They have made it plain that their program goes well beyond the elimination of Roe. It contemplates the reversal of the New Deal expansion of the national government's regulatory powers, the destruction of the separation of church and state, and the grant of sweeping powers to the President in his war on terror.

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This is the threat posed by the nomination of Harriet Miers. Just as Clarence Thomas told a skeptical Senate that he had never discussed Roe v. Wade with anyone, we can expect Miers to invoke executive privilege to block any sustained discussion of her views on the key constitutional issues. Just as Thomas played the race card against his opponents, Miers supporters will indulge similarly cynical invocations of the need for gender balance.

But the Senate should have the courage to learn from the Thomas affair, and hold the line against stealth revolutionaries. It should place the burden on Miers, not her critics, to establish that she is not another Clarence Thomas. It should refuse to confirm her unless the White House retreats on executive privilege.

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