President Bush’s nomination of Harriet Miers to the Supreme Court of the United States is extraordinary in a number of ways. She is the the first personal attorney to a president to be nominated since Lyndon Johnson picked Abe Fortas. She is certainly the only member of a president’s personal staff to have been nominated in recent memory, and perhaps a “first” in history in this respect as well those the White House has been touting: first female president of the Texas Bar, first female managing partner of a sizable Texas law firm.
As Geoff Stone (Law, U. of Chicago) has pointed out, Miers is not the first close associate of a president to be nominated to the Court, but in those other cases the nominees were also held in high general regard. In Miers’s case, there has been an outcry from the President’s “base” about her basic fitness to serve–-with the extreme malediction having been pronounced by Pat Buchanan: “Ms. Miers’s qualifications for the Supreme Court are utterly non-existent.” Ironically, some on the left have come to her defense on this score. But as for the President’s claim that Miers is “the most qualified person in the country,” no one has seriously challenged Senator Trent Lott (R-Miss), who in an appearance on MSNBC observed that “Clearly...there are a lot more people, men, women and minorities that are more qualified in my opinion by their experience than she is.” Sen. Lott was no doubt thinking of Judges Edith Jones and Janice Rogers Brown, whom the National Pro-Life Action Center (NPLAC) has called on the President to consider as replacement nominees.
Is excellence a prerequisite for the job? Although by statute the Solicitor General–the proverbial “tenth justice”–must be “learned in the law,” there is no comparable, explicit requirement of the first nine. Geoff Stone recalls:
When President Richard Nixon, no fan of the Supreme Court, nominated the forgettable G. Harrold Carswell 35 years ago, Nebraska Sen. Roman Hruska defended the nomination with an unforgettable bit of wisdom: "Even if he is mediocre, there are a lot of mediocre judges and people and lawyers," Hruska declared. "They are entitled to a little representation, aren’t they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there."
In seeming anguish, Stone asks, “Have we sunk, again, to that level?” The answer, sadly, is “No–even lower.”
If Miers’s professional qualifications were the only or even the major doubt about this nomination, many fair-minded people would be willing to give her the benefit of at least an up-or-down vote in the Senate. A far more serious objection to the Miers nomination is that she is not merely a crony of the President, but a person who has been for so long in the direct, personal service of George Bush that her appointment would tend to undermine the separation of powers. As Randy Barnett (Law, Boston U.) has reminded readers of the Wall Street Journal, Hamilton explained in Federalist No. 76 the purpose of the role the Senate was given in high appointments:
It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Barnett goes on to say: “Apart from nominating his brother or former business partner, it is hard to see how the president could have selected someone who fit Hamilton’s description any more closely. Imagine the reaction of Republicans if President Clinton had nominated Deputy White House Counsel Cheryl Mills, who had ably represented him during his impeachment proceedings, to the Supreme Court. How about Bernie Nussbaum?”
The separation-of-powers worry is far from merely valetudinarian. As Anthony Lewis reports in the New York Times, Miers has left no public trace of her views on the extent of presidential prerogatives in the name of “war on terror”–-such as torture and warrantless detention of citizens. Lewis notes, however, that torture-apologist John Yoo (UC-Berkeley, Law) wrote in the Washington Post, soon after her nomination (“Opportunity Squandered”), that Miers was “one of the key supporters in the Bush administration of staying the course on legal issues arising from the war on terrorism.” Yoo ominously added that “it is hard to see how the administration could reveal Miers’s position on these issues, given its tough, five-year struggle to preserve the confidentiality of executive-branch deliberations.” In this context, one can only imagine how Hamilton and Madison would receive the President’s assurances that “I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today...I don't want to put somebody on the bench who is this way today, and changes. That's not what I'm interested in.” No, of course not.
Sadly, it is no surprise that this president should regard “Staff Secretary to the President,” “Counsel to the President” and “Supreme Court Justice” as more or less fungible titles available to him to parcel out at his pleasure. George W. Bush was, himself, denied admission to the University of Texas School of Law in 1970, during his youthful search for an identity; and stronger characters than his have managed such disappointments by belittling their importance. He did not bother to reapply. Instead, he entered the business world, where he perhaps absorbed the viewpoint of banking magnate and Harvard patron J. P. Morgan, who once opined, “Well, I don't know as I want a lawyer to tell me what I cannot do. I hire him to tell how to do what I want to do.” Or her.
But perhaps the most serious objection of all to the Miers nomination arises from the manner in which it has been marketed to the suddenly skeptical pro-life right. Because the White House is unwilling and perhaps unable to convey explicit assurances from the nominee that she will decide cases in accord with their agenda, it has instead made an issue of her fundamentalist Christian faith. According to the Associated Press:
Bush defended his nomination, saying Miers was highly qualified, a trailblazer in the law in Texas and someone who would strictly interpret the Constitution - something his conservative supporters want evidence to support. He said his advisers' comments about Miers’ churchgoing were meant to give people a better understanding of his little-known nominee. "People are interested to know why I picked Harriet Miers," he said. "They want to know Harriet Miers' background. They want to know as much as they possibly can before they form opinions. Part of Harriet Miers' life is her religion."
This from the White House that had only the month before warned the Senate to leave now-Chief Justice Roberts’s Roman Catholicism alone. Article VI, clause 3, of the U.S. Constitution declares that "No religious Test shall ever be required as a qualification to any office or public trust under the United States.” The message the President has sent to his base is that her religious beliefs can be counted on to shape her judicial behavior–-and that’s why he picked her. Far-right Republican Alan Keyes has called this assurance “probably well intentioned” but suggests that if this was the reason he nominated Miers “he should reconsider it.” Why, indeed, did Miers herself not warn her president away from so dubious a defense of her candidacy?–-Keyes wonders, as well might we all. Keyes concludes–-perhaps unfairly–-that Harriet Miers cannot “uphold, protect and defend what she does not understand and cannot articulate.” (What a thought!)
The fate of the Miers nomination is still uncertain. If it fails, for whatever reason, it will be soon forgotten: if it succeeds, it may never be forgotten–-especially if, as Maureen Dowd has puckishly suggested, Justice Miers works up “a good grudge” against neo- and paleo-con “meanies” from Robert Bork and Pat Buchanan to Trent Lott and George Will, and goes on to avenge herself by taking the leftward path “trailblazed” by Justices Warren and Brennan and worn smooth by Justices Blackmun, Stevens, Kennedy, and Souter.
Obviously, the White House was as unprepared for this storm from the right as it had been for Hurricane Katrina. How did “Harry” Miers get picked in the first place? Was Karl Rove too distracted by “Brownie” Brown and kidney stones and grand juries to mind the store? The absorbing story is told in the Wall Street Journal by John Fund. Mr. Bush had set a personal precedent in 2000 of asking the vetter to take the post for which the vetting was being done: that was how Dick Cheney became Vice President. Fund continues:
The Miers pick had its origin in the selection of John Roberts last July. Ms. Miers was praised for her role in selecting him and the wildly positive reaction. At that point, a senior White House official told the Washington Post that William K. Kelley, the deputy White House counsel who had been appointed to his post only the month before, stepped in. The Post reported that Mr. Kelley "suggested to [White House Chief of Staff] Andy Card that Miers ought to be considered for the next seat that opened."
To most people's surprise, that happened with stunning swiftness when Chief Justice William Rehnquist died Sept. 3. Judge Roberts's nomination was shifted to fill the vacancy for chief justice, thus opening up the seat of Justice Sandra Day O'Connor. A quick political consensus developed around the White House that the nominee should be a woman.
Even though several highly regarded female lawyers were on Mr. Bush's short list, President Bush and Mr. Card discussed the idea of adding Ms. Miers. Mr. Card was enthusiastic about the idea. The New York Times reported that he "then directed Ms. Miers' deputy . . . to vet her behind her back."
For about two weeks, Mr. Kelley conducted a vetting he has described to friends as thorough. It wasn't. A former Justice Department official calls it "barely adequate for a nominee to a federal appeals court."
Fund continues:
Regardless of whether or not the vetting process was complete, it presented impossible conflicts of interest. Consider the position that Mr. Bush and Mr. Card put Mr. Kelley in. He would be a leading candidate to become White House counsel if Ms. Miers was promoted. He had an interest in not going against his earlier recommendation of her for the Supreme Court, or in angering President Bush, Ms. Miers's close friend. As journalist Jonathan Larsen has pointed out he also might not have wanted to "bring to light negative information that could torpedo her nomination, keeping her in the very job where she would be best positioned to punish Kelley were she to discover his role in vetting her."
Mr. [Steven] Lubet, the Northwestern [(Law)] professor, says "all the built-in incentives" of the vetting process were perverse. "In business you make an effort to have disinterested directors who know all the material facts to resolve conflicts of interest," he told me. "In the Miers pick, the White House was sowing its own minefield."
"It was a disaster waiting to happen," says G. Calvin Mackenzie, a professor at Colby College in Maine who specializes in presidential appointments. "You are evaluating a close friend of the president, under pressure to keep it secret even internally and thus limiting the outside advice you get."
Indeed, even internal advice was shunned. Mr. Card is said to have shouted down objections to Ms. Miers at staff meetings. A senator attending the White House swearing-in of John Roberts four days before the Miers selection was announced was struck by how depressed White House staffers were during discussion of the next nominee. He says their reaction to him could have been characterized as, "Oh brother, you have no idea what's coming."
A last minute effort was made to block the choice of Ms. Miers, including the offices of Vice President Cheney and Attorney General Alberto Gonzales. It fell on deaf ears. First Lady Laura Bush, who went to Southern Methodist University at the same time as Ms. Miers, weighed in. On Sunday night, the president dined with Ms. Miers and the first lady to celebrate the nomination of what one presidential aide inartfully praised to me as that of "a female trailblazer who will walk in the footsteps of President Bush."
Where those footsteps may lead is anybody’s guess.
