Covering the Front and Back Pages of the Newspaper
October 3, 2005
LAW: It's Miers
So, President Bush has chosen White House Counsel Harriet Miers for the next Supreme Court opening. First of all, a hat tip to David Frum; as I noted back in July, Frum was the first to float Miers' name as a dark horse pick for the Court. Miers is profiled here by the Washington Post.
Color me less than thrilled. Yes, I know that she's known to be pro-life; in fact, that's nearly the only thing that seems to be known for certain about her views, given that in 1993 she led an unsuccessful battle to change the ABA's position on abortion (ht: ConfirmThem). And I know that, as the White House is already pointing out, 10 of the last 34 Justices have been non-judges appointed from within the executive branch, including William Rehnquist, Byron White, Robert Jackson, and William Douglas.
But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice. First, she's not young; at 60, Miers is older than almost all of the widely-discussed candidates. Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones. Miers may well be highly intelligent, but she has no such reputation. Third, Bush also passed over experienced trial judges - Jones, Emilio Garza, Edith Brown Clement. There's actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public - where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced - is a Court that lacks an essential perspective on its role in the system of justice. Of course, Miers was a commercial litigator for years, so that's a fair substitute for experience as a trial judge on the civil side, but I'm not sure if she has any criminal experience. And much of her career path has been spent as an administrator, running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years. She presumably hasn't seen a courtroom in a decade.
Miers may well play well on TV, as John Roberts did. But Roberts entered the game with a powerful advantage: his unchallenged reputation for brilliance and high qualification. Her personal story - a never-married woman who worked her way up through male-dominated Texas law firms to become the first president of the Texas State Bar, breaking lots of 'glass ceilings' in the process - could be an inspiring tale to feminists, but since they are the #1 group automatically opposed to any Bush nominee, Miers' political benefits should be blunted.
I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?
By picking an advisor known well to the president but without well-known views or qualifications in the larger legal community, Bush is asking us to trust him. And, personally, I do trust him. But for the public at large, "trust me" works a lot better for a president with high approval ratings and lots of political momentum than for a Chief Executive who has been off his stride and on the defensive much of the year. Especially given that Miers' selection plays right into the hands of the Democrats' recent drive to complain about Bush appointing "cronies." I just can't think that Harriet Miers was the best person for the job.
UPDATE: Krempasky notes that Miers gave $1,000 to the Al Gore for President campaign in 1988, and another $1,000 to the Democratic National Committee in November 1988.
SECOND UPDATE: I should note that Bush calls the bluff of Harry Reid, who said he wanted a nominee who was "more of a trial lawyer."
What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left.
THIRD UPDATE: John Hinderaker is disappointed. K-Lo says everybody's depressed about this one and thinks the Christian Coalition will balk at Miers because she ran the lottery. Why Jonathan Adler thinks Miers "will likely provoke little Democratic opposition" is beyond me. NRO, Hinderaker, Morrissey, RedState . . . if Hugh Hewitt is underwhelmed (as I suspect he will be), who's left to defend the Administration on this one?
FOURTH UPDATE: John Hawkins of Right Wing News sets the bar for disappointment: "a Bush crony with no real conservative credentials . . . To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection."
FIFTH UPDATE: MaxSpeak has the text of today's Harry Reid statement:
In my view, the Supreme Court would benefit from the addition of a justice who has real experience as a practicing lawyer. The current justices have all been chosen from the lower federal courts. A nominee with relevant non-judicial experience would bring a different and useful perspective to the Court.
I agree with that, although I'm withholding judgment on what she brings to the table until I hear more about what exactly her litigation experience consisted of. Meanwhile, Hugh Hewitt finds it in himself to back Bush on this after all. My take: the best conservatives can hope for is that Miers is a follower, not a leader.