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Ron Cass's defense of Harriet Miers

Ron Cass's defense of Harriet Miers (via Volokh).

Cass is lukewarm, at best, about Miers as a nominee, but argues that the appropriate conservative thing to do is to defer to the president's choice. No one's claiming that Bush doesn't have the right to nominate Miers. I'm not even arguing that Bush's nomination doesn't deserve presumptive weight. The argument is that the presumption's been rebutted.

In terms of the originalist argument, I think Federalist No. 76 is fairly persuasive that this is precisely the kind of nomination the president should be sufficiently embarrassed to make that the Senate should have no regrets in rejecting the nomination. This isn't an argument that no one from SMU Law can be nominated. It's not an argument that Miers can't be nominated because she has no judicial experience—by that standard, John Roberts would be unqualified. It's not even an argument that her failure to ever argue a Supreme Court case disqualifies her, because I don't believe that, either. I wouldn't have any objection to her nomination to the Northern District of Texas or the Fifth Circuit.

First, her nomination merits additional scrutiny because of the means by which it was decided. Miers was in charge of screening judicial nominees. Who vetted the vetter? Can we believe that Miers gave a fair assessment of the strengths and weaknesses of her nomination to the president? Can we believe that other people, who would have to work with Miers if they objected, presented forthright opinions to the president? (Tom Smith made this point ably, as has Matthew Franck and Randy Barnett.)

What does disqualify her in my mind is the utter failure to participate in the constitutional debates of her era, and the consequences for debate in this country if we have a bipartisan consensus that publicly thinking about the Constitution disqualifies one for the Court. We've noted others who made this point, so I won't repeat it here. But Cass doesn't acknowledge the argument—or Federalist No. 76—at all. I'm unhappy that John Roberts ran away from admitting an association with the Federalist Society, but at least he demonstrated that he was an impeccable legal mind who deserved to be on the Court. Miers hasn't shown that skill yet. Perhaps Miers will surprise me with a stellar performance at the Judiciary Committee Hearings that changes my mind, though early accounts of her meet-and-greets with Senators, if accurate, would imply that that is unlikely.

Cass is absolutely correct that the current makeup of the court risks misdeciding a case on the current docket challenging its International Salt precedent. But that's an argument for nominating Frank Easterbrook, who's both a leading light of the judiciary and a leading light of business and antitrust law, rather than Harriet Miers, who is neither.



Rafael Mangual
Project Manager,
Legal Policy

Katherine Lazarski
Manhattan Institute


Published by the Manhattan Institute

The Manhattan Insitute's Center for Legal Policy.