SOUTH DAKOTA STRAIGHT TALK

Straight Talk Commentary – Newt Gingrich accurately points out in this now widely circulated opinion piece that Harriet Miers will not be an activist Justice. That is what the President promised and that is what he delivered with this appointment. While everyone awaits the confirmation hearings to further size up Ms. Miers attitudes and demeanor, regardless of all the discourse to date, no one truly doubts that she is not a conservative.

Some on the right oppose her because what they really hunger is an activist, all be it on just their particular issues. Not all of the opposition, but some desire an outspoken nominee rather than a stealth candidate. Those opponents want hearings that include a loud, vociferous, and confrontational discussion on Roe v. Wade. Confirming a Conservative Justice is not their goal but rather having a forceful national argument highlighting the evils of abortion.

Point in fact the daily blast fax from Gary Bauer’s American Values organization entitled “Why Stealth Is Wrong.” Bauer demands a passionate and animated debate and believes the absence of such a debate is “corrupting.” As an analogy to the fact that all these people want is Bauer’s own candidacy for President in 2000. Gary Bauer, a former Reagan White House staffer, was the single-issue candidate that used the Presidential primary process to highlight his single issue. Recognize the MO? Also remember that his campaign received little if any noticeable support. He got his 15 minutes and a microphone to talk about his issue (again all that he really wanted).

 As the First Lady, Laura Bush, has suggested there may be an element of sexism in the opposition to Miers. There is no question a few extremists also surreptitiously oppose her because she is a woman.

In many ways Harriet Miers shares similarities with Chief Justice Roberts. No one disputed his conservatism, little was known about his personal views and he proclaimed not to be an activist. Both are accomplished attorneys and were prominent members of their legal communities. The widely held view is that both will rule on the law and not legislate from the bench. John Roberts served as Associate Counsel to the President while Miers serves as Counsel. Their principle differences are Roberts was appointed to the bench while Meirs campaigned for and held elected office.

Anecdotally because of his lifetime of experiences and the nature of his law practice Justice Roberts has set the bar at extreme heights for all future nominees, Republican and Democrat on questions proffered concerning Constitutional Law. Certainly no sitting Justice brought his qualifications to confirmation hearings (Harvard, Harvard Law, Law Clerk on the Appellate Court, Law Clerk for a Supreme Court Justice, 39 cases tried before the Supremes, served as an Appellate Judge)

With the exception of their age difference and consequently the amount of time they might expect to serve, the outlook for the kind of Justices they will be is about the same: Conservative non-activist Jurists who will be umpires not players. But as Chuck Berry said - "You Never Can Tell" That applies to even the Roberts, Scallia, and Thomas.

Without exception, the most conservative Republicans and in fact most Republicans are on record that nominees deserve an up or down vote for Confirmation. It will be interesting to watch and see if they would rather fight than vote.

Conservatives Can Trust in Miers

By Newt Gingrich

The Baltimore Sun

October 7, 2005

Conservatives should feel confident with the selection of Harriet Miers to replace Sandra Day O'Connor on the Supreme Court for a simple reason: George W. Bush selected her.

Much has been made in the press about conservative unhappiness with the White House on issues such as spending and immigration and most recently with the selection of Ms. Miers. However, while these tensions are not insignificant, the president has stayed remarkably true to conservative principles on every major decision he has made since winning the Republican primary.

He unabashedly ran as a conservative in the election and even selected Dick Cheney - a man of impeccable conservative credentials - as his vice president. Once elected, he assembled a Cabinet of conservatives, including Donald H. Rumsfeld, John Ashcroft and Condoleezza Rice. He proceeded to cut taxes as promised, and did it again in 2002.

After 9/11, President Bush resisted the prevailing wisdom in Washington that terrorism should be dealt with as a crime, instead treating the attacks as acts of war that required a military response. And after the 2004 election, Mr. Bush put himself front and center as an impassioned advocate of transforming Social Security into a system of personal accounts.

In both of his presidential campaigns, Mr. Bush stated his intention to nominate judges who "will faithfully interpret the law and not legislate from the bench." And his appointments to the federal courts - including the hotly contested appeals court selections - fit that description.

Similarly, Mr. Bush's pick of John G. Roberts Jr. to be chief justice reflected this philosophy. During his confirmation hearings, the nominee repeatedly stressed his view that a federal judge is not a legislator and therefore must carry out his or her responsibilities with a clear understanding of judicial limitations.

At the nomination news conference, Ms. Miers' first remarks were reassuring in this regard: "It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts and our society." She promised to "strictly apply the laws and the Constitution."

Conservatives should also be confident that Ms. Miers has the tenacity to remain committed to these principles while under the pressures and scrutiny of the nation's highest court. As the leader of the Texas Bar Association, she proved to be a very effective leader opposing the American Bar Association's official stance in support of abortion, including active support of taxpayer-funded abortions.

Despite divisions within the Texas bar about the practice of abortion, Ms. Miers was able to get unanimous support from all members in her campaign to urge the ABA to move away from a position of outright support.

"If we were going to take a position on this divisive issue, the members should have been able to vote," she argued.

Ms. Miers' dedication in that struggle shows that she is deeply committed to the conservative ideal that the people themselves, not an unelected elite, should be able to decide about deeply held values. She was unwilling to allow an umbrella organization to dictate to its chapters what position it must take on controversial issues. It was this type of toughness and commitment to core principles that led Mr. Bush, then governor of Texas, to refer to Ms. Miers as "a pit bull in size-six shoes."

In addition, Ms. Miers brings an important type of diversity to the bench: diversity of experience. Like Chief Justice William H. Rehnquist, Ms. Miers brings experience to the court from outside the judicial chamber. As a former commercial litigator, she will offer a real-world perspective on business cases that has been missing for years on the court.

And perhaps most important, Mr. Bush has worked closely with Ms. Miers every day since his days as governor. The president knows her and knows what kind of justice she will make. Ms. Miers was instrumental in the selection of conservative federal appeals court candidates such as Priscilla Owen and Janice Rogers Brown - appointments that have greatly distressed liberals. She also was involved in the selection of Chief Justice Roberts and was part of the team that coached him through the confirmation process.

Mr. Bush governs with a very straightforward methodology: He says what he's going to do. He does it. And then he does it again. This has been true with taxes, the war on terror and now with judges.

In both presidential campaigns, the president repeatedly promised to appoint justices like Clarence Thomas and Antonin Scalia to the Supreme Court.

With the president's knowledge of Ms. Miers, his stated commitment to rebalancing the judiciary and his conservative record - not only in appointing judges but on big decisions in general - conservatives should feel comfortable in taking the president at his word that he has just now delivered another nominee in that tradition.

Former House Speaker Newt Gingrich, a senior fellow at the American Enterprise Institute, is the author of Winning the Future: A 21st Century Contract with America.