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Cipher, Crony, or Competent?
It’s been just a few hours since President Bush’s Monday morning, 8:00 a.m. announcement of his pick for Justice Sandra Day O’Connor’s seat on the U.S. Supreme Court – White House counsel Harriet Miers, a Texas lawyer with no judicial experience – and already the blogosphere is buzzing with comments and rumors about Ms. Miers. Among the more interesting posts are these:
Glenn Reynolds, at Instapundit.com, sums up the general reaction best by noting he’s (so far) “underwhelmed.” He reports many social conservatives are bitterly disappointed, fearing Miers might turn out to be another Souter – in other words, someone with no clearly discernable judicial philosophy who turns to left-liberal constitutionalism once on the Court. Some conservatives already are alarmed by reports that FEC records show Miers contributed to Al Gore’s presidential campaign in 1988, although (as some bloggers here note) Gore in 1988 was to the right of where George W. Bush is now. (Apparently, Miers is like many of her fellow Texans who were formerly conservative Democrats before joining the Republican Party in the 1990s.) Others (including Reynolds himself) note with some alarm that Senate Minority Leader Harry Reid apparently suggested Miers (or someone like Miers) when, in a recent meeting with the President, he advised him to pick someone other than an appellate court judge, someone with “real courtroom experience” as a lawyer or trial judge. Rick Lowry comments, “After the Roberts pick conservatives swooned and said Bush doesn't care about `diversity’; it's only high qualifications that matter to this bold, let-the-chips-fall-where-they-may leader, etc., etc. Don't we have to take all that back now?” Finally, David Frum – who was the first person to mention Ms. Miers as a serious possibility, a month or so ago – writes in his National Review online diary that the nomination was disappointing, especially in view of the highly qualified (and eminently confirmable) conservatives Bush could have picked: “This is the moment for which the conservative legal movement has been waiting for two decades--two decades in which a generation of conservative legal intellects of the highest ability have moved to the most distinguished heights in the legal profession. On the nation's appellate courts, in legal academia, in private practice, there are dozens and dozens of principled conservative jurists in their 40s and 50s unassailably qualified for the nation's highest court. Yes, Democrats might have complained. But if Democrats had gone to war against a Michael Luttig or a Sam Alito or a Michael McConnell, they would have had to fight without weapons. The personal and intellectual excellence of these candidates would have made it obvious that the Democrats' only real principle was a kind of legal Brezhnev doctrine: that the Court's balance must remain forever what it was in the days when Democrats had a majority of the votes in the U.S. Senate. In other words, what we have, we hold. Not a very attractive doctrine, and not very winnable either. The Senate would have confirmed Luttig, Alito, or McConnell. . . . There was no reason for him to choose anyone but one of these outstanding conservatives. As for the diversity argument, it just seems incredible to imagine that anybody would have criticized this president of all people for his lack of devotion to that doctrine. He has appointed minorities and women to the highest offices in the land, relied on women as his closest advisers, and staffed his administration through and through with Americans of every race, sex, faith, and national origin. He had nothing to apologize for on that score. So the question must be asked, as Admiral Rickover once demanded of Jimmy Carter: Why not the best?” Frum adds why he fears Miers will not be able to resist pressure to shift to the left, if confirmed for the Court: “I worked with Harriet Miers. She's a lovely person: intelligent, honest, capable, loyal, discreet, dedicated ... I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or--and more importantly--that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.. . . “There have just been too many instances of seeming conservatives being sent to the high Court, only to succumb to the prevailing vapors up there: O'Connor, Kennedy, Souter. Given that record, it is simply reckless for any conservative president to take a hazard on anything other than a known quantity of the highest intellectual and personal excellence. “The pressures on a Supreme Court justice to shift leftward are intense. There is the negative pressure of the vicious, hostile press that legal conservatives must endure. And there are the sweet little inducements--the flattery, the invitations to conferences in Austria and Italy, the lectureships at Yale and Harvard--that come to judges who soften and crumble. Harriet Miers is a taut, nervous, anxious personality. It is hard for me to imagine that she can endure the anger and abuse--or resist the blandishments--that transformed, say, Anthony Kennedy into the judge he is today. “Nor is it safe for the president's conservative supporters to defer to the president's judgment and say, "Well, he must know best." The record shows I fear that the president's judgment has always been at its worst on personnel matters.” Some of the comments in response to Frum’s column question his doubts about Miers’ “spine and steel,” noting that an experienced attorney with her background, both in her work for the Texas bar and more recently in her work in Washington, is not likely to be as spineless as he suggests. Nevertheless, like Todd Zywicky (who posted Frum’s comments on the Volokh Conspiracy blog), I’m inclined to agree with Frum’s fears about the pressure on Supreme Court justices to shift to the left – that is, the left-liberal constitutionalism that’s orthodoxy both in the legal academy and in the professional bar. It takes an extraordinarily self-confident person, with a well-defined judicial philosophy, to resist the pressure. Justice Kennedy apparently has not been able to do so; is there any persuasive reason why Miers would be different?
· “A Cipher” Conservative blogger “Polipundit” calls Miers a “cipher,” suggesting Bush chose her primarily because she has no “paper trail.” John Hawkins, at RightWingNews.com, sums up the bitter disappointment of many conservatives: “Miers is a Bush crony with no real conservative credentials, who leapfrogged legions of more deserving judges just because she was Bush's pal. She used to be Bush's staff secretary for God's sake and now she's going to the Supreme Court while people like Michael Luttig, Priscilla Owen, Janice Rogers Brown & Emilio Garza are being left on the sidelines. . . . To merely describe Miers as a terrible pick is to underestimate her sheer awfulness as a selection.”
· Lesbian? Perhaps the most interesting rumor (thus far) about Ms. Miers is that she’s a lesbian. The rumor, fueled by a recent Washington Post article profiling her, apparently is based solely on unfair stereotyping and a misunderstanding: the facts that Miers is 60 years old, unmarried and with no children, and once had her “partner” cast a proxy vote for her at a Texas bar association meeting. (The “partner” was female, fueling speculation she was Miers’ domestic partner rather than the obvious alternative, that she was a business partner, at her law firm.) Gaypatriot, a blogsite for gay and lesbian supporters of President Bush, predicts that the Human Rights Campaign will oppose her nomination, calling her a “threat to the future of mankind and future architect of the Montana Gay Concentration Camps,” and that Log Cabin Republicans “will issue a wussy statement about their wanting questions answered and a fair process established in the Senate confirmation hearings, and express hope that….ZZZZZZZZZzzzzzzzzzz…..”
Meanwhile, on the Volokh Conspiracy blogsite, Todd Zywicki notes that, a month ago when explaining the Roberts nomination, he had observed: “A distinguishing characteristic of this President seems to be the faith he puts in his own personal judgments and assessment of people. Perhaps it is arrogance, perhaps it is that he truly is a better judge of character and ability than the rest of us, but he truly seems to believe that he has better judgment about others than anyone else around him. Or perhaps he wants someone who he thinks will be loyal to him and no one else (such as outside interests). It is similarly my impression that far more than most Presidents he relies on his personal assessments of people who he chooses for his inner circle, rather than their resumes or experience.”
After noting that he erred in predicting that Bush would pick one of his own appellate judge nominees (such as Brown, Clement, or McConnell), Zywicki adds: “At the time, of course, I had assumed that some minimum degree of luminescence would be required, in addition to Presidential trust. Little did I know that being close to the President would turn out to be the sole criterion for nomination to the Supreme Court.” Other commentators here also focus on the obvious cronyism of the pick, one of them observing: “[T]his job gets filled as if it is a second tier cabinet post.” Several note the parallels to previous presidential picks of personal favorites: LBJ’s of Abe Fortas, or Richard Nixon’s of Harold Carswell. One, in calling Miers an “Abe Fortas in skirts,” nicely sums up this point of criticism.
· . . . Who Favors Not Just Bush, but the Executive Branch? A number of the commentators on the Volokh Conspiracy website also express concern that in picking his White House counsel, Bush not only picked someone who (he believes) will support Administration policies generally but particularly someone who has a broad view of executive branch powers and will support the Bush administration’s policies with regard to the war on terrorism. David Bernstein notes both negatives and positives in his initial reaction to the Miers nomination: “It's unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more `independent’ perspective to issues of government and especially presidential power. And appointing his `personal lawyer’ from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.”
With regard to his “executive-branch insider” point, Bernstein adds the following possible implication with regard to the war on terrorism: “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.”
A number of posts replying to Bernstein agree that Miers is likely to take a broad view of executive branch powers – in other words, that she if she is indeed “conservative,” she’s likely to an be anti-civil libertarian conservative.
But Is She Competent? Just how closely should the Senate Judiciary Committee examine Ms. Miers? As I have previously argued here (“Confirmation Abuse,” Sept. 5), the Senate’s “advise and consent” power was designed by the Constitution’s framers as a check against political corruption; it should be limited to reviewing a nominee’s qualifications for office. When Senators oppose confirmation simply for political reasons – simply because they disagree with an otherwise well-qualified candidate’s judicial philosophy, as did the 22 Democratic Senators who voted “No” on Roberts – they abuse their power. Given that, however, as the comments quoted above clearly show, there are plenty of questions about Harriet Miers’ qualifications to be a justice on the Supreme Court. Although I tend to agree with Professor Bernstein that the absence of federal judicial experience ought not be a disqualifier and indeed may be a positive (recognizing that, historically, many of the Court’s justices – including former Chief Justice Rehnquist and Justice O’Connor herself – lacked federal judicial experience), I also share David Frum’s doubts about Bush’s judgment generally and about this nomination, particularly. With such excellent potential nominees as Judge Michael McConnell (or, as I suggested in my previous entry, Judges Janice Rogers Brown or Deborah Cook), is Miers really the best choice Bush could have made? That question is especially important in light of the legitimate doubts we might have about the new Chief Justice Roberts’ jurisprudence (also discussed in my previous entry, “Confirmation Update,” Sept. 29). At first glance, Miers’ competency is indeed questionable – especially in light of the obvious cronyism that’s at work here. Given the absence of a “paper trail” recording any discernible jurisprudence, with this nominee the members of the Senate Judiciary Committee will be justified in questioning Miers about her view of the role of a Supreme Court justice and her general approach to constitutional questions. Among other questions we should expect the Senators to ask (and legitimately so) is how Miers’ view of the independence of the three branches of the federal government (which she mentioned in her brief comments at the White House this morning) will affect her view of the scope of the Court’s judicial review powers. For example, how does she see questions about the president’s so-called “war powers”? Are those justiciable matters for the Court’s determination or are they non-justiciable “political questions”? As people on the left have argued, Justice O’Connor’s seat is indeed critical for the “balance” of the Court – but the balance that left-liberals see isn’t the important one. O’Connor did indeed cast the deciding vote on a number of issues important to leftists – among them, affirmative action and abortion – but she also cast a critical, and often deciding, vote on more important issues, such as the Rehquist Court’s New Federalism (a bit of a misnomer for the Court’s restoration of some constitutional limits on Congress’s powers under the Commerce Clause). For example, the most important decision made by the Rehnquist Court – its decision in the 1995 case of Lopez v. United States (holding unconstitutional the federal “Gun-Free School Zones Act” as exceeding Congress’s powers under the so-called Commerce Clause) – was decided by a fragile, 5-4 majority, with O’Connor casting the deciding vote for the majority. Contrary to many left-liberal commentators (such as the writers of today’s USA Today editorial, “Personal freedoms ride on O’Connor’s replacement”), the “federalism” issue is indeed an issue of personal freedom, one of the most important personal freedom issues the Court will face in the 21st century: namely, do we have a federal government of unlimited power, to dictate the conditions under which all Americans may live their lives, or do we have – as the framers of the Constitution intended it – a federal government of limited powers, enumerated in the Constitution? If Miers will follow O’Connor on this critical issue, she’s at least minimally qualified for the Court; if she won’t, she’s not.
| Link to this Entry | Posted Monday, October 3, 2005 | Copyright © David N. Mayer |
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