Baseball Crank
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.

Even Frum isn't overly impressed:

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?

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect.

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."

Captain Ed is less than impressed. David Bernstein is, perhaps, more incisive as to Bush's motivation:

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.

Posted by Baseball Crank at 7:49 AM | Law 2005 | Comments (11) | TrackBack (6)
Comments

Count a non-party-aligned, libertarian attorney among the lessed-than-thrilled group. While Roberts ain't my cup of tea philosophocally, I was annoyed by the knee-jerk opposition from the Dems. He's qualified, he's smart, and --surprise, surprise, surprise -- he's a conservative. I always thought the Constitution pretty much guaranteed that the winner of the election could choose a nominee of his political stripe. Did the Dems expect Bush to nominate Derschowitz or Tribe?

That said, Miers appears to be an apparatchik, an administrator, (dare I say it) a hack. Unfortunate, indeed. Again, philosophically I wouldn't want to see Luttig or Jones, but as a citizen and a lawyer, well, isn't that the type of Justice you want? Personally, I'll take Posner or Easterbrook, but I gave up on that chance years ago.

Posted by: Mike at October 3, 2005 9:33 AM

I'm not eager to see more Scalia-esque choices, but Miers appears to be, from any objective standards, underqualified. Particularly in the wake of the Katrina mess, it's surprising to me that Bush would choose someone who can so readily be painted as a cronyism choice.

Posted by: Jerry at October 3, 2005 10:07 AM

Defending the rights of ABA members to vote on the ABA's abortion stance is a far cry from opposing abortion. I don't see any indication that Miers is pro-life. Given her campaign contributions, she looks like another Souter to me. I'm willing to wait and trust Bush on this one, but I think it's clear there were an abundance of superior candidates for this nomination.

Posted by: Atomopawn at October 3, 2005 10:32 AM

It took about 24 hours to deconstruct Rathergate in the blogosphere. If the President is defending his choice to nominate a person without judicial experience, as 35 of the previous 109 have been, shouldn't some one or more persons look into those 35 and winnow the list down to a fair comparison that really matches up? Earl Warren (not a favorite) was governor of Californai, a former state attorney general (I think) and a Republican vice-presidential niminee. William O. Douglas had rund the SEC (something more important then the Texas Lottery) and had been a professor at Yale Law School. Robert Jackson had been FDR's Attorney General. By the time you winnow the 35 down for those who (1) had won mjor office (senators, Governors, state Attorney Generals), (2) held major Department of Justice (Attorney General, Solicitor General, etc.) or cabinet positions, or (3) been con law scholars, professors, or law school deans, how many are left, who are they, and were they otherwise distinguished? Anyway, I was for Edith Jones and a fight if required. I bet she's wondering what she would have to do after twenty years on the Fifth Circuit to be fairly considerded.

Posted by: Jim at October 3, 2005 11:04 AM

Douglas was indeed an academic. Jackson's a better comp - he had a minimal resume when he came to DC, but worked his way up in the administration. But Jackson had been Atty General and, I believe, Solicitor General, which is the best qualification you can have. Not sure what Byron White's resume was.

I don't think they're counting Earl Warren, who had not worked for the federal government.

Posted by: The Crank at October 3, 2005 11:57 AM

I believe Byron White led the NFL in rushing in 1939. It may have been 1940, and 1941 also.

Posted by: Interested Conservative at October 3, 2005 12:04 PM

Why would you be surprised at a pick largely based on cronyism from this Administration? This is the raison d'etre of this bunch.

Posted by: jim at October 3, 2005 12:09 PM

Actually, Hewitt surprisingly likes this selection.

I'm not that concerned about the political donation from nearly 20 years ago. Texas used to be overwhelmingly Democrat so a high-powered lawyer from a major firm making a donation is not much different than paying your fees at a YMCA you never go to. If they were more recent I'd pay more attention to them. I don't see her as a Souter. GHW Bush selected Souter based on bad advice without knowing the guy. That excuse won't wash if Miers ends up as bad as Souter since GWB has known her for over a decade and vouched for her himself.

The best part of this selection will be the Ann Coulter column we know is coming. If she had problems accepting John Roberts, what will she say about Harriet?

Posted by: largebill at October 3, 2005 12:16 PM

For some reason my trackbacks are bouncing, so ping!

Posted by: Dave Schuler at October 3, 2005 12:21 PM

Look at the change in strategy since John Bolton was nominated. That was a nomination by a confident president, willing to take on a fight. Bolton had some trouble, and now we see back-to-back nominations of SCt justices by a president who wants to see if he can somehow manage to sneak through.

I don't want to exaggerate this, but I don't see this attitude as a good sign for the remainder of the second term. (Caution: Smart-aleck remark to follow.) I think Al Qaeda is probably happy with this nomination. (End smart-aleck remark.)

Posted by: Attila (Pillage Idiot) at October 3, 2005 1:29 PM
Defending the rights of ABA members to vote on the ABA's abortion stance is a far cry from opposing abortion.

No but it does show that one thinks such policy issues are better decided by the democratic process rather than imposed by small select groups.

I don't see any indication that Miers is pro-life. Given her campaign contributions, she looks like another Souter to me.

Wasn?t Al Gore considered to be a pro-life, conservative Democrat in 1988 when she gave him a campaign contribution?


Posted by: Thorley Winston at October 3, 2005 3:38 PM
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