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Protect Court against a Stealth Revolution--A Commentary by Prof. Bruce Ackerman

(This essay was originally published in the October 16, 2005, edition of the Philadelphia Inquirer.)

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.

Nobody knows whether Miers will turn out to be a judicial radical such as Thomas. But nobody at his Senate confirmation hearings imagined that Thomas would turn out to be Thomas. Why, then, the loud protestations from the far right?

Answer: 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.

President Bush's refusal to endorse this vision by nominating a plainspeaking Bork II means only one thing: He does not think that he would win the broad debate over the constitutional future that such a provocative choice would precipitate. Since the President has thus retreated, moderates and liberals would be unwise to allow Bush to achieve revolutionary aims through more devious means.

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.

The President is perfectly free to waive the privilege if he wishes, and he should. After all, his dilemma is entirely of his own making. He could have nominated countless conservatives, but he made Miers his surprising choice. If, for some reason, he thinks it's so important to place Miers on the bench, he should not use his privilege to prevent her from establishing that she, like John Roberts, respects judicial precedent. Given her lack of a track record, only her work with the President can permit an informed assessment of her true constitutional views. If the President refuses to assist Miers in making her case, the Senate should refuse to confirm her. The risk of a stealth revolution is simply too great.

That revolution, if it occurs, will throw our system into disequilibrium for decades, as democratic politics reacts to far-right decisions by taking aggressive actions against the courts. The long-run result may be the loss of judicial independence, and the erosion of checks and balances essential for freedom. The Senate should not allow the cries of betrayal on the far right to substitute for solid evidence that Miers is indeed a mainstream conservative.

Bruce Ackerman is author of The Failure of the Founding Fathers, coming out this month.