Harriet Miers as balancing act

Much mystery still surrounds the suitability of Harriet Miers for the High Court. Yes, she's a fine lawyer. Yes, she'd be a woman replacing a woman. But to both the left and right, the big unknown is this: How would she tip the court's balance?

Balance on the Supreme Court, like a teeter-totter held more or less level, was supposedly the role that departing justice Sandra Day O'Connor often assumed during her 24-year tenure. She was the most frequent "swing" justice, casting the pivotal fifth vote in 148 out of 193 cases since 1995. She gave the Rhenquist court a color between red and blue. By dancing on both sides of the political spectrum, she ended up as perhaps the most powerful person in government.

With Ms. O'Connor's planned resignation, Democrats had demanded President Bush replace her with a similar wildcard "moderate," hoping a like-minded replacement would side with them some of the time. Social conservatives wanted a nominee overtly aligned with their views, especially against abortion.

Both sides also wanted a nominee with a forceful intellect who could outargue the other justices by sheer erudition, winning ideological points, and thus ensuring victories for their causes in the courts that neither side is able to achieve by popular persuasion through legislative action.

Using the courts to achieve political aims was once a liberal agenda, but many conservatives have since bought into the tactic. The liberal People for the American Way warned "against any terrible changes" to the court with O'Connor's departure, while the conservative Family Research Council called for a grassroots "fight" to confirm a nominee more to the right of O'Connor.

The easy choice in such polarized circumstances is to select a centrist on ideology. In their politics, Americans often admire moderates, such as John McCain or Joe Lieberman.

Should Ms. Miers be that kind of political moderate? As during the hearings on John Roberts to be chief justice, senators will probe her thinking and her past for clues on how she might vote on topics such as privacy rights and separation of church and state. And like Mr. Roberts, she will likely not tip her hand as a potential decider on such issues.

Like O'Connor, though, Miers appears to bring the experience of solving real-world problems by being a bridge-builder who seeks compromise. After breaking through the glass-ceiling of the law profession (as the first woman to become a partner at a major Texas law firm and the first woman to be president of the State Bar of Texas), she was elected to the Dallas city council and was later chosen to clean up the state lottery commission. Such a diversity of experience, as well as her being a woman, could provide a balance other than the ideological kind that appellate judges and constitutional scholars often bring.

Miers's balancing act, as O'Connor's largely was, may be in trying not to legislate from the bench but in deciding each case on its own merits based on legal precedents. Her moderation may be in being modest about the role that courts should play. But such a prediction depends on what senators learn, as they balance their ideologies against the need for a justice who acts with judicial restraint.

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