A Lone Star Junction
By Horace Cooper
October 7, 2005
History often repeats itself. A comparison of Harriet Miers with the only Texan to serve on the Supreme Court makes this admonition quite compelling. Associate Justice Tom Campbell Clark has the distinction of being the only Texan appointed to the United States Supreme Court. He was appointed by President Harry S. Truman in 1949 and retired in 1967. He was a University of Texas graduate and like Harriet Miers (who received her law degree from Southern Methodist University) he too was a native of Dallas. Also, like Harriet Miers, he had a notable career in private practice in Texas -- in her case she ended up as one of the managing partners of Locke Liddell & Sapp, a 400-lawyer Texas firm. And while Ms. Miers served as a member of the Dallas city council, Justice Clark had served as a Dallas County District Attorney.
The similarities don't stop there. Tom Clark came to Washington as part of the Roosevelt Justice Department and rapidly distinguished himself so much so that ultimately he was named Attorney General by President Truman. Harriet Miers came to Washington as part of the Bush Administration and served as Assistant to the President and Staff Secretary during the first two years of his presidential term. Thought to be a close personal friend of the president, she was initially promoted to the post of Deputy Chief of Staff and in November 2004, Bush named her to succeed Alberto Gonzales (who left the office to be his new Attorney General), in the post of White House Counsel. As the chief legal advisor for the Office of the President, she like Tom Clark was one of the President's lead advisors overseeing nominations to the federal courts including the Supreme Court.
Perhaps the most notable similarity between Harriet Miers and Tom Clark is they shared a deep commitment to promoting America's national security. Many may not recall that President Truman held strongly anti-communist views. And in the wake of the conclusion of World War II, President Truman believed that the Soviet Union and its doctrinaire advocacy of Marxism now represented the greatest threat to world peace. As a result, he catapulted the United States into a "Cold War" struggle against the world wide threat of communism that would last 40 years.
Tom Clark would prove an able lieutenant for this task. Among other actions designed to attack the communist threat within and without the federal government, Attorney General Clark would advise President Truman to issue an executive order requiring the Justice Department to engage in a sweeping loyalty policy covering subversives in the federal government. President Truman did so and ultimately this policy allowed the dismissal of federal employees for disloyalties associated with being communists, fascists, or Nazis.
Later with Clark as a Truman appointee to the Supreme Court, the court would rule in Dennis v. United States that the leaders of the Communist Party accused of lying about their membership could not use the First Amendment as a basis to prevent their convictions for conspiracy to overthrow the U.S. government. Since he had previously ordered these prosecutions when he was Attorney General, Justice Clark did not participate in the case. However the decision vindicated President Truman's view that communism was a serious national security threat and the court's acquiescence in allowing the executive broad latitude to respond to this threat.
Arguably, like President Truman had in his day, President Bush sees the War on Terror as the defining issue of his presidency. And as White House Counsel, Harriet Miers has been a key architect of the administration's policy to combat terrorist networks. Unlike the high profile advocacy role of Attorney General Alberto Gonzales which may have presented some significant recusal concerns were he to be named to the Supreme Court, Ms. Miers' lower profile role as White House counsel is less likely to do so.
In any event the Court ultimately will have to deal with the follow-up of its rulings in: Hamdi v. Rumsfeld and Rasul v. Bush. While Hamdi upheld the authority of the executive to detain American citizens designated enemy combatants the decision was narrow in its scope pushing unanswered questions for review later. Rasul however is more problematic. In this case, the Supreme Court extended federal court access to "alien" enemy combatants even in cases involving detainees captured and held oversees outside of the United States.
In the cases likely to follow these two decisions, the Supreme Court's final direction is yet to be defined. Today the court signals a mixed level of deference to the executive's prosecution of the War on Terror. If Harriet Miers joins Chief Justice Roberts in tilting the court towards giving the Bush Administration broader latitude when it comes to national security, history will have clearly repeated itself.
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Assistant Professor Horace Cooper teaches a course on the "Modern Supreme Court Confirmation Process" at George Mason University School of Law
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Note -- The opinions expressed in this column are those of the author and do not necessarily reflect the opinions, views, and/or philosophy of GOPUSA.