Ms. Miers does not have a judicial paper trail, but to the greatest extent possible the Senate should consider her record as the president’s chief legal advisor. According to the White House 2001 Project, the Office of White House Counsel sits at the intersection of law, politics and policy. Because of this blend of responsibilities, the most essential function a Counsel can perform for a president is to act as an “early warning system” for potential legal trouble spots. We wish there were some evidence that Ms. Miers has been sufficiently vigilant on matters of concern to CMR. 

Women in Combat = Selective Service Registration

As CMR has reported in a series of articles on this website (See Issues/Women in Combat), since 2004 the Department of the Army has been violating current Defense Department regulations regarding the assignment of women in land combat. At issue are the improper assignments of female soldiers to certain land combat support units that collocate (operate 100% of the time) with infantry, armor, and Special Operations Forces, which are required to be all male.

In allowing the Army to do this, the Department of Defense has been circumventing a law requiring official notice of proposed rule changes to Congress at least three months in advance. The law also requires an analysis of the effect of rule changes on women’s exemption from Selective Serviceregistration. None has been provided.

There are only three explanations for this disappointing situation. As White House Counsel, Ms. Miers either approved of the Defense Department’s illicit assignments of women to units required to be all-male, without prior notice to Congress as required by law, or she was unaware of the long-term legal consequences of those improper assignments, or she gave sound advice that the president did not heed.

In any case, the Defense Department and Army are still flouting the law. Since the White House will correctly decline to release privileged communications between Ms. Miers and the president on this or any other issue, it will be difficult to determine responsibility for the situation.

In January 2005 President Bush said in an interview that his position was “No women in [land] combat.” The Army nevertheless continued to assign female soldiers to units designated by Defense Department regulations to be all male, in violation of the congressional notification law. A highly publicized debate ensued, led by House Armed Services Committee Chairman Duncan Hunter(R-CA).

On May 18 the full committee voted for legislation sponsored by Chairman Hunter and Personnel Subcommittee Chairman John McHugh(R-NY), which would have codified current policy on women in combat. The White House Counsel has the responsibility to provide advice on the legal and political aspects of proposed legislation, but we don’t know what Ms. Miers recommended in this case.

A week later, Secretary of Defense Donald Rumsfeldasked that the legislation be withdrawn, and nothing has been done since then to bring the Army back into compliance with Pentagon policy and the congressional notification law.

Even civilians should be concerned about this. The ACLU and feminist groups have pushed for decades for women to be subject to Selective Service registration for a future draft. The Supreme Court has historically based young women’s exemption from registration on the fact that women are not assigned to land combat units on the same basis as men. (Rostker v. Goldberg, 1981, reaffirmed by a U.S. District Court in Massachusetts, 2003)

If women’s land combat exemptions are ended, incrementally if not all at once, the Supreme Court could easily reverse its own precedent by deferring to the military’s new policy. New litigation brought by the ACLU would likely succeed. By failing to comply with the law requiring congressional notification, the Bush Administration will have laid the groundwork for an ACLU victory.

Legal Confusion + Precedents = Homosexuals in the Military

In the same way, unresolved ambiguity on the issue of homosexuals in the military has created potential legal jeopardy that could have been avoided. The controversy centers on “don’t ask, don’t tell,” the controversial policy proposed by then-President Bill Clinton in 1993. After months of controversy and twelve public hearings, Congress rejected “don’t ask, don’t tell,” the idea that homosexuals can serve in the military as long as they don’t say they are homosexual.

Members recognized that such a policy would be unclear, unenforceable, and indefensible in court. Instead, overwhelming majorities in both Houses of Congress passed a law to codify the long-standing policy that “homosexuality is incompatible with military service.”

But Bill Clinton had made a campaign promise to accommodate homosexuals in the military. He signed the exclusion law, but later announced enforcement regulations, still known as "don't ask, don't tell," which are inconsistent with it. These administrative regulations, crafted by then-White House Counsel Bernard Nussbaum, were designed to accommodate discreet homosexuals in the military, despite clear prohibitions in the law. The result has been constant confusion, controversy, and potential legal jeopardy.

Judge Michael Luttig, as a member of the 4th Circuit Court of Appeals, wrote unequivocally about the difference between the 1993 statute and “don’t ask, don’t tell” in a 1996 decision upholding the law. Instead of naming Luttig or someone like him to the Supreme Court, Bush has named a modestly qualified nominee because she is a trusted friend.

We don’t know whether Ms. Miers agrees with Bill Clinton’s convoluted policy, whether she is unaware of the difference between “don’t ask, don’t tell” and the law, or whether she gave sound advice on the issue that the President Bush did not heed. We do know that homosexual activists are counting on contradictions inherent in “don’t ask, don’t tell” to achieve their most extreme goals.

Lawsuits have already been filed to have the homosexual exclusion declared unconstitutional, this time citing the Supreme Court’s 2004 Lawrence v. Texas decision, which struck down state anti-sodomy laws. Justice Sandra Day O’Connor concurred in Lawrence v. Texas, which cited foreign court precedents in support of the majority opinion.

In the next round of litigation, homosexual activists plan to cite a 1996 ruling of the European Court of Human Rights, which ordered the United Kingdom to accept homosexuals in all branches of the British military. We don’t know how the Supreme Court will rule, but the legal ambiguity caused by the Clinton “don’t ask, don’t tell” policy, combined with Lawrenceand foreign court precedents, could result in a victory that homosexual activists otherwise would not get.

Deference to the Military

During the confirmation process we cannot expect Ms. Miers to comment on these lawsuits, or to answer inquiries about her confidential advice to President Bush. Still, Senate Judiciary Committee members should question Ms. Miers about her philosophy on congressional oversight of the military, judicial deference to policies made by Congress, the use of foreign court opinions as precedent, and others principles that would guide her judgment.

Regardless of what happens with the nomination, the problem remains that the Bush Administration has allowed major judicial/military issues to become needlessly muddled. On matters of women in combat, registration of girls for Selective Service, and homosexuals in the military, to which policy will the future Supreme Court defer?

During his remaining three years in office President Bush can still order the Department of Defense to comply with the congressional notification law on women in combat, and to drop Bill Clinton’s troublesome “don’t’ ask, don’t tell” regulations. He should do this not because he has nominated Harriet Miers to be a Justice of the Supreme Court, but because the President has the constitutional responsibility to faithfully execute the law.

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