The only filibuster of a presidential Supreme Court nominee came in 1968, when Lyndon Johnson nominated his long-time friend and personal lawyer Abe Fortas for chief justice of the United States. It is somewhat ironic that we now again have a Texas president trying to appoint his long-time friend and personal lawyer to sit on the Supreme Court of the United States.
There is absolutely nothing to suggest that Harriet Miers, unlike Abe Fortas, has anything but the highest ethical standards. Still, for an administration already reeling from charges of cronyism, this nomination strikes a strange chord. When a president nominates a close associate, he necessarily invites scrutiny - and he should.
Her naysayers notwithstanding, Miers does have a distinguished legal career. It’s unlikely that she would turn out to be a left-leaning jurist like David Souter, whom the first President George Bush nominated on others’ recommendations. Miers might indeed wind up an outstanding member of the court, and 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.
The problem, however, is that as impressive as Miers’ background is, she is undeniably less qualified than many others the president passed by. That’s not because she didn’t go to one of the elite law schools that her prospective peers on the court attended - the attitudes that permeate these places are in large part responsible for the imperial judiciary that many of us who work in legal reform so deplore, and it’s not as if Southern Methodist University isn’t a fine academic institution.
Miers’ lack of service as a judge is also not in itself much of an issue: Chief Justice William Rehnquist lacked judicial experience, and Chief Justice John G. Roberts and Justice Clarence Thomas had very short tenures on the federal bench. And it’s salutary indeed to have some members of the Supreme Court who, like Justice Sandra Day O’Connor herself, have not spent most of their adult lives inside the Beltway.
Despite these caveats, though, no 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.
Nor is it just white men who overshadow her. Her fellow Texans Edith Jones and Priscilla Owen have similar academic backgrounds to Miers, and similar business law experience, but distinguished careers on the bench. The chief judge of the Sixth Circuit Court of Appeals, Danny Boggs, is of Hispanic (Cuban) ancestry, a principled conservative jurist and a prodigious intellect.
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.