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Roger Fitch Esq
21 October, 2005  
Our Man in Washington

What with Harriet Miers’ confirmation looking increasingly unlikely, Roger Fitch endeavours to explain how it is that a Democrat can transform into a Republican, let alone how a Catholic can become an evangelical. These switches were quite the thing in Texas and, surprise-surprise, it’s all to do with opportunism

imageAs the Great Republic continues its downward spiral, even “conservatives” are complaining about our Great Leader’s latest Supreme Court nominee.

Harriet Miers must be a “horsy” sort of woman, because I have seen her variously described in the media as a dark horse, a stalking horse, a Trojan horse and even Caligula’s horse. But Harriet is from Texas and, as you may have surmised, I know a fair bit about Texas, so I have my own ideas.

The “conservatives” are worried by Harriet Miers’s past transformation from Catholic to evangelical and from Democrat to Republican. But I’ve seen both of these phenomena close-up.

According to the observant Siva Vaidhyanathan, who lived there at the time of Harriet’s Damascene conversion:

“When I moved to Texas in 1984, every elected state-wide official was a Democrat. Several were notorious liberals. When I left in 1998, every one was Republican. Until quite recently, many of these born again Republicans had been notorious liberals.”

He goes on to blame it all on Karl Rove. Not me. I attribute it to self-interest, sometimes known as opportunism. Many of my erstwhile Democrat friends, for instance, were elected judges in the days when no Republicans were on the ballot, and judgeships, though elected, were essentially non-partisan, with re-selection usually following the (Democrat) governor’s appointment.

Suddenly it all changed, there was opposition and the Republicans, no matter how obscure and self-selected, were being elected. Today they are all Republicans. My friends who are still judges found it expedient to call themselves Republicans, but the Republican stranglehold on Texan judgeships seems to be the result of people converting.

In any case, the judicial effect seems to have rolled over to the private bar, including law firm capos like Ms Miers, who seems to have had her epiphany at about the same time. Those of us who, in our youth, relied upon court appointments, can understand. There are practical benefits in conversion.

The watershed year for these changes was 1994. That’s when the unknown (the man, not his name) George Bush defeated the popular Texan governor, Ann Richards. In the Congressional elections, it was the year every incumbent Republican candidate was re-elected. There were enough new members to give the Republicans control of the House for the first time in 40 years.

In my opinion, the lunatics have been in charge of the asylum ever since.

Some of the inmates, however, are now concerned about the legal qualifications of a presidential adviser with no background in constitutional law – one who has never, however briefly, been a judge. A woman who thinks Mr Bush is the “most brilliant” man she has ever met. A person who chaired the search for a supreme court justice and ended up being the candidate herself – rather like Dick Cheney when he was put in charge of finding a running mate for Dubya in 2000.

In FindLaw’s Writ the helpful Michael Dorf has penned, “A Crash Course in Constitutional Law for Harriet Miers – and Everybody Else”, which should serve as a primer for her confirmation.

Although it is becoming increasingly doubtful that Miers will be confirmed – even fire-breathing Republican loyalists are demanding she withdraw – she would not be the first Texan on the Supreme Court.

Texas, like South Australia or Tasmania, has usually been off the radar on highest court appointments. However, in 1949, Harry Truman appointed his attorney general, the Texan Tom Clark, to the court. He retired in 1967 to smooth the way for his son Ramsey’s appointment as Lyndon Johnson’s attorney general, a nicety no longer observed on the court. One thinks of the year 2000 and the justices who, while considering and voting in Bush v Gore, were unbothered by extensive family involvements in the Bush putsch.

While Tom Clark was extremely conservative, his son Ramsey is what, I believe, Aussies call a “ratbag”. In recent years he has signed every anti-imperialist manifesto and represented clients as diverse as Saddam Hussein and possibly Slobodan Milosovic. If I’m not mistaken, he recently participated in a mock war crimes trial of George W. Bush. Needless to say, he doesn’t live in Texas and isn’t on anyone’s shortlist for a judicial appointment.

As for Sandra Day O’Connor, she is continuing in her position till her successor is appointed. She is participating in the conferences on the Hamdan certiorari petition. Her vote on that may clarify her footnote in the Hamdi case, where she famously implied some sort of military commission might suffice for Guantanamo detainees.

Of course, she never indicated that Bush-ordained presidential commissions, outside the statutes of the US, would suffice, but that hasn’t deterred the government in its relentless quest to use these ad hoc military “trials” in lieu of established civil or military justice.

Justice O’Connor has a new job lined up, it is reported. Like Maggie Thatcher before her (who only accepted because Oxford snubbed her), O’Connor is to be the chancellor of William & Mary College in Virginia, established 1699. This is an unusual post-judicial employment in itself, but Justice O’Connor has in fact several other claims that distinguish her from her peers. She was, for instance, the only member of the court who was ever in politics – as a state senator in Arizona.

“Pre-judicial” work experience of the justices is also revealing. Justice Clarence Thomas, for instance, is the only member of the court who has ever worked as a corporation lawyer. I’m sorry to report it was for Monsanto.