I have a column in today's Newsday discussing the nomination of Harriet Miers to the Supreme Court. My thoughts, formed independently, are pretty similar to those Ted expressed here yesterday, minus the "wishful thinking" hypothesis.
I tend to agree with Ted that Miers's business law experience is a plus: "as a lawyer with deep experience as an actual litigator of business issues, she would bring a useful expertise to a court filled with academics and government lawyers." And I agree with him that it's disappointing that she's the nominee, given so many more obviously able candidates out there:
[S]he is undeniably less qualified than many others the president passed by. . . . [N]o objective observer could claim that Miers is another Roberts, who is hailed as the top lawyer of his generation. No objective observer could claim that she is as well prepared for the Supreme Court as, say, Michael McConnell, Frank Easterbrook, Samuel Alito or Michael Luttig, who have impeccable records on the bench or are the undisputed leaders of major fields of jurisprudence.
I point out, as David Bernstein noted yesterday, that the problem with this nomination isn't that Miers hasn't been a federal judge and didn't go to an elite law school--and that her lack of D.C. life experience could be a positive--but that the total sum of her life experience makes her what Hugh Hewitt yesterday called "a solid, B+ pick." The Supreme Court, though, should be reserved for the A+ types. John Roberts fits that bill. Harriet Miers doesn't. She's not a lightweight, but she is moving up in weight class, and those who watched the Roy Jones fight Saturday night saw what happens when even the most skilled practitioner tries that too late in life.
Don't get me wrong: Miers might vote on the Court just the way I would, perhaps more than Roberts. But that isn't the point for those of us who don't ascribe to the results-oriented jurisprudence of either the right or the left. My conclusion:
Miers is a fine lawyer, and she broke the glass ceiling for women in Texas. But it's impossible to conclude that she would be the president's nominee but for their close personal ties, her gender and her lack of a discernible paper trail.
And there's the rub: Not merely does President George W. Bush's choice smack of personal favoritism and a capitulation to the identity politics his party professes to reject, but in nominating Miers, the president has cowed to the Democrats' outcome-based view of the law, and their belief that as a minority party they have the right to scuttle any potential justice who has a known opinion that contradicts their preferred results.
Harriet Miers may yet turn out to fit the mold of Justices Clarence Thomas and Antonin Scalia, whom Bush held out as his ideal jurists on the campaign trail, but her chief virtue as a nominee is that she lacks written opinions that shed any light on her theory of jurisprudence. The president's decision to nominate someone with such a lack of a record is disappointing, since it implies that he's not willing to make a vigorous, public defense of the consistent conservative critique of judicial activism.
Indeed, over the last 50 years, even while losing at the polls, the ideological left has maintained its power by dominating the legal process and supplanting the people's elected officials with judges who legislate from the bench. Yesterday, a Republican president, with a Republican Senate, tacitly acquiesced to this state of the world by eschewing the many stellar potential Supreme Court nominees with conservative judicial records, in favor of his personal confidante whose known legal thinking is hidden from the public eye.
I'd also encourage our readers to check out Randy Barnett's much more scathing assessment in his Wall Street Journal column today, "Cronyism." I think Randy places too much stock in one's having been a professor or federal judge, but he's clearly on point in wanting a Supreme Court nominee to have worked on developing "considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people." And I like Randy's citations to Federalist 76, which I quoted myself in the draft of my column (before Ted had pointed us to Larry Solum's relevant citation yesterday--and before the Newsday editors deleted my reference due to space constraints). There's nothing inherently wrong with a president picking someone with whom he has extensive, long-standing experience--it certainly gives the chief executive a fuller insight into the person's thinking and character--but whenever an appointee is as personally close to the president as this one, the appointee should face a higher burden of proof.