October 07, 2005

The job of the White House Counsel is to keep the president free from embarrassment over legal issues. And, for the first few months of her tenure, Harriet Miers, unlike Alberto Gonzales before her, did just that, staying as anonymous as a White House Counsel should be.

But Harriet Miers the White House Counsel, as the attorney in charge of vetting Supreme Court nominees, has not done her job with respect to Harriet Miers the nominee. Given the importance of this nomination, the precedent set by the original courageous and bold nomination of John Roberts to fill O'Connor's seat, and the promise of Bush to his supporters to nominate another Scalia or Thomas, a good White House Counsel would've looked at Miers's resume, and not let it even get to the president for consideration. A White House Counsel looking out for the president's best interests would have fought much harder to keep Bush from making this kind of mistake; such a White House Counsel, faced with such strong opposition from her own side, would recommend that the candidate withdraw her nomination. And the failure of Miers to do so is all the evidence one needs that she isn't suited for this job.

David Frum gives the political argument for withdrawing the nomination. Unfortunately, it appears that the Bush administration will do the opposite, and argue that Miers's evangelical Christianity is what qualifies her for the job, an appalling breach of the decorum and norms of civilized discourse in American politics. Professor Bainbridge explains the problems of playing the faith card.

R.J. Lehmann Julian Sanchez saddles Miers with the nickname of Incitatus, which is rather unfair, but quite humorous.

The University of Michigan has a repository of Miers documents—articles she's written, reported opinions of cases she's litigated—that's mandatory reading (via Volokh).