One of the most serious, far-reaching decisions any President can make is his choice of a nominee to the U. S. Supreme Court. President Bush has now faced this important responsibility twice within the span of 65 days.
On July 19th, President Bush nominated Judge John G. Roberts to replace retiring Justice Sandra Day O'Connor. On September 5th, two days after the death of Chief Justice William Rehnquist from cancer, President Bush switched Roberts, naming him as the replacement for Rehnquist and also nominating him for Chief Justice. On September 29th, the Senate, by a 78 to 22 vote, confirmed Roberts as the Supreme Court's 17th Chief Justice. On October 3rd, President Bush then nominated White House Counsel Harriet Miers to fill the open O'Connor seat.
Following that nomination, an unexpected firestorm of opposition arose from some conservatives; however, other conservatives applauded the nomination, thus surprisingly pitting conservatives against each other. Those supporting Miers include:
Ø James Dobson, Focus on the Family
Ø Richard Land, Southern Baptist Convention
Ø Roberta Combs, Christian Coalition
Ø Jay Sekulow, American Center for Law and Justice
Ø Leonard Leo, The Federalist Society
Ø Chuck Colson, Prison Fellowship
Ø Ken Starr, Former Chief Solicitor General of the United States
Ø Frank Pavone, National Pro-life Religious Council; Priests for Life
Ø Newt Gingrich, American Enterprise Institute; Former Speaker of the U. S. House
Ø National Right to Life
Those opposing Miers include a few pro-family groups, but many conservative columnists:
Ø George Will
Ø Ann Coulter
Ø Pat Buchanan
Ø Bill Kristol
Ø Peggy Noonan
Ø Charles Krauthammer
Ø Paul Weyrich, Free Congress
Ø Phyllis Schlafly, Eagle Forum
Ø Matt Staver, Liberty Council
Ø Operation Rescue
There is also a third group that remains uncommitted at this point, including:
Ø Tony Perkins, Family Research Council
Ø Gary Bauer, American Values
Ø Kelly Shackelford, Liberty Legal Institute
Ø Concerned Women for America
Perhaps Jan LaRue of Concerned Women for America best explains the position of the uncommitted groups:
We give Harriet Miers the benefit of the doubt because thus far, President Bush has selected nominees to the federal courts who are committed to the written Constitution. Whether we can support her will depend on what we learn from her record and the hearing process.
A large number of U. S. Senators also remain uncommitted, including conservatives Sam Brownback (ks), Tom Coburn (ok), George Allen (va), and John Thune (sd). In fact, nearly half of the Senate's 55 Republicans remain uncommitted about the nominee of their own party and President.
The rhetoric invoked against this nominee has been harsh – and mildly reminiscent of that against President Reagan's 1987 nominee Robert Bork (except that the leaders of this attack are conservative rather than liberal columnists). The criticism has even become melodramatic. Consider:
Ø "Supreme Court nominee was a supremely bad choice." "George W. Bush has just rung the death knell for his presidency." Quin Hillyer, mobile register
Ø "Bush recoils from greatness." Pat Buchanan, syndicated columnist
Ø "Disappointed, Depressed and Demoralized." William Kristol, syndicated columnist
Ø "The Miers Misstep: What was President Bush thinking?" "Presidents are always being surprised by what losers they put on the bench." Peggy Noonan, wall street journal
Ø "Miers is the wrong pick." "If 100 such people had been asked to list 100 individuals who have given evidence of the reflectiveness and excellence requisite in a justice, Miers' name probably would not have appeared in any of the 10,000 places on those lists." George Will, syndicated columnist
Ø "The Miers nomination is a disservice, not just to conservatives, but the whole country." David Frum, national review
The vehement response against Bush from those who have long been his supporters stems from their fear that this nomination may be yet another in the long line of nominees who have become opponents of faith and family values and have used their judicial powers to create and sustain the culture war. John Fund of the Wall Street Journal recounts:
Every Republican president over the past half century has stumbled when it comes to naming nominees to the high court. Consider the record:
After leaving office, Dwight Eisenhower was asked by a reporter if he had made any mistakes as president. "Two," Ike replied. "They are both on the Supreme Court." He referred to Earl Warren and William Brennan, both of whom became liberal icons.
Richard Nixon personally assured conservatives that Harry Blackmun would vote the same way as his childhood friend, Warren Burger. Within four years, Justice Blackmun had spun Roe v. Wade out of whole constitutional cloth.
Gerald Ford personally told members of his staff that John Paul Stevens was "a good Republican, and would vote like one." Justice Stevens has since become the leader of the court's liberal wing. . . .
Paul Weyrich of the Free Congress Foundation recalls the hard sell the Reagan White House made on behalf of Anthony Kennedy in 1987, after the Senate rejected Robert Bork. "They even put his priest on the phone with us to assure us he was solid on everything," Mr. Weyrich recalls. From term limits to abortion to the juvenile death penalty to the overturning of a state referendum on gay rights, Justice Kennedy has often disappointed conservatives.
Most famously, White House chief of staff John Sununu told Pat McGuigan, an aide to Mr. Weyrich, that the appointment of David Souter in 1990 would please conservatives. "This is a home run, and the ball is still ascending. In fact, it's just about to leave earth orbit," he told Mr. McGuigan. At the press conference announcing the appointment, the elder President Bush asserted five times that Justice Souter was "committed to interpreting, not making the law." The rest is history.
Ned Ryun, who worked at the White House under the current Bush, similarly recounts:
In 1981, Ed Meese, then at the Reagan White House, called up televangelist James Robison and told him, "Sandra Day O'Connor thinks abortion is abhorrent and is not in favor of it. She agrees with the President on abortion. She is very conservative. Sandra Day O'Connor assured the President that she was in agreement with him and she totally supports pro-family issues and the Republican platform." James Robison said he believed the White House and would promote O'Connor. I think we all know how O'Connor turned out.
While these fears are understandable, any comparison of this nominee with those of previous presidents is ill-founded. There is a dramatic difference between this nominee and a Souter, Kennedy, and O'Connor: in this case, President Bush, however, has worked side-by-side with Harriet Miers for a dozen years; none of the other presidents personally knew their nominees prior to naming them. As The Washington Post points out:
In the Oval Office and on the road, Miers has spent more time with [Bush] than perhaps any aide except Chief of Staff Andrew H. Card Jr. On Sept. 11, 2001, she was flying on Air Force One as it sped the president to the Midwest and back after the terrorist attacks. Such proximity to Bush makes her unlike any Supreme Court nominee of the past generation.
President Bush – better than any critic or supporter – should know best whether Harriet Miers fulfills his pledge to America. As former Speaker of the House Newt Gingrich correctly observes:
In both of his presidential campaigns, Mr. Bush stated his intention to nominate judges who "will faithfully interpret the law and not legislate from the bench." And his appointments to the federal courts – including the hotly contested appeals court selections – fit that description. Similarly, Mr. Bush's pick of John G. Roberts Jr. to be chief justice reflected this philosophy. . . . Mr. Bush has worked closely with Ms. Miers every day since his days as governor. The president knows her and knows what kind of justice she will make. Ms. Miers was instrumental in the selection of conservative federal appeals court candidates such as Priscilla Owen and Janice Rogers Brown – appointments that have greatly distressed liberals. She also was involved in the selection of Chief Justice Roberts and was part of the team that coached him through the confirmation process.
President Bush acknowledged his pledge when he nominated Miers:
Over the past five years, I've spoken clearly to the American people about the qualities I look for in a Supreme Court Justice. . . . [A] Justice must strictly apply the Constitution and laws of the United States, and not legislate from the bench. This summer I nominated an individual to the High Court who embodies all these characteristics [John Roberts]. . . . [and] I'm proud to announce that I am nominating Harriet Ellan Miers to serve as Associate Justice of the Supreme Court.
No one knows Miers' viewpoint on issues better than Bush; he felt comfortable with her on the issues in which he believes and he therefore nominated her.
Am I suggesting that President Bush is not capable of making a mistake in his nomination? or that he did not make one in nominating Harriet Miers? Absolutely not; but I am pointing out that the comparison of Miers to a Souter, Blackmun, Warren, or other bad nominees from previous presidents, is comparing apples with oranges.
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The remainder of this piece will explore beyond the rhetoric, fears, and emotions that have largely characterized the public debate to this point and will bring a more objective perspective and balance to the arguments being raised by both supporters and opponents. This briefing will begin by looking at Miers' personal background and professional experience, the potential indicators of her philosophical views (that is, the current arguments for and against her), her prospects for confirmation, and then I will offer my personal view of this nomination.
I. Personal & Professional Background
At the time of her nomination, Harriet Miers was 60 years old (nine years older than the average Supreme Court nominee of recent decades). A brief review of her life to this point:
Ø 1945: Born in Dallas, Texas, on August 10, the fourth of five children.
Ø 1963: Graduated from Hillcrest High School in Dallas.
Ø 1967: Received her bachelor's degree in mathematics from Southern Methodist University. (Miers attended smu with First Lady Laura Bush.)
Ø 1970: Received her J.D. law degree from Southern Methodist University.
Ø 1970: Upon graduation, she clerked for U.S. District Judge Joe E. Estes until 1972.
Ø 1972: Became the first woman hired at a prestigious Dallas law firm (Locke, Purnell, Rain, Harrell).
Ø 1979: Named the Outstanding Young Lawyer of Dallas by the Dallas Association of Young Lawyers.
Ø 1985: Became the first woman to become President of the Dallas Bar Association.
Ø 1989: Elected to the Dallas City Council, where she served a two-year term. (It was during this time that she first met George W. Bush.)
Ø 1992: Became the first woman elected President of the State Bar of Texas.
Ø 1994: Served as campaign counsel for Bush's gubernatorial campaign, and then as general counsel for the transition team of Governor-elect Bush.
Ø 1996: Elected the first female president of Locke, Purnell, Rain & Harrell, a firm of about 200 attorneys (she became the first woman to lead a Texas firm of that size).
Ø 2000: Miers was one of two candidates for the No. 2 position at the American Bar Association before withdrawing her candidacy to serve in the Bush Presidential Administration. (She held several positions within the ABA, including Chair of the Board of Editors of the ABA Bar Journal, Chair of the House of Delegates, Chair of the ABA's Commission on Multi-jurisdictional Practice, and a member of the ABA Governance Committee.)
Ø 2000: Served as National Co-Chairman of Lawyers for Bush-Cheney and helped manage the Bush v. Gore litigation effort.
Ø 2000: When she left private practice to join the Bush Administration, she was the co-managing partner of a 400-attorney law firm, Locke, Liddell & Sapp.
Ø 2001: Following the inauguration of President Bush, Miers was appointed Bush's Staff Secretary. (In that role, she was responsible for reading every single piece of paper that crossed the President's desk, including correspondence, memos, legislative bills, and policy recommendations.)
Ø 2003: Appointed White House Deputy Chief of Staff (serving just below Chief of Staff Andrew Card), where she served as a top domestic policy advisor to the President.
Ø 2005: Appointed White House Counsel to the President, serving as a principal advisor on judicial nominations (13 attorneys served on her staff).
Ø 2005: Nominated as the 110th Justice to the U. S. Supreme Court.
Additionally:
Ø In her almost three decades of private practice, Miers has tried cases and argued appeals before both state and federal courts. Those cases have spanned a broad range of issues and she has represented major corporate clients such as Microsoft, Walt Disney Co., and SunGard Data Systems Inc.
Ø Miers has been named on multiple occasions by the National Law Journal as one of the Nation's 100 most powerful attorneys; she has also regularly been named as one of the Nation's top 50 women lawyers.
Ø Harriet Miers is single, never having married, and cares for her 93 year old mother. Her mother and two of her three brothers live in Dallas; the other brother lives in Houston. (Harriet's sister is deceased.)
II. Philosophical Indicators
The judicial philosophy of Harriet Miers has been the primary focus of the debate and speculation surrounding her nomination. Since both the objections against her and the reasons for supporting her have been provided by social conservatives, the result has been a confusing cacophony of voices. This section will review nine of the major issues that have been raised in the debates surrounding her. An honest examination reveals that while some of the arguments against her have some merit, most do not.
While Miers does not have a written track record indicating her judicial philosophy, that philosophy may be inferred from the work she has done in moving strict constructionist judges through from nomination to confirmation. Those judges have included not only Supreme Court Chief-Justice John Roberts but also Janice Rogers Brown (DC Court Of Appeals), Priscilla Owen (5th Circuit Court Of Appeals), Bill Pryor (11th Circuit Court Of Appeals), and many others. Miers has shown herself to be one of the President's most trusted advisors in this process. If she differed from the president's views on judicial philosophy and temperament, it is almost impossible to believe (1) that her dissenting views would not have been made public by her co-workers, or (2) that she would continue to work so vigorously and loyally on judicial nominees for a president with whom she held divergent judicial views. In fact, Fred Barnes of The Weekly Standard reports:
Here's what people at the White House told me. . . . The president and others at the White House have had long discussions with her about judges. She and Rove were involved in questioning at least five candidates for the court vacancy Roberts has filled. From those talks over the months, I'm told, it became clear to Bush that she had exactly the philosophy of judicial restraint he favors and that she wouldn't "grow" as a justice and turn into a swing vote or a liberal. Also, I'm told, the president is fully aware of the stakes in this nomination. Roberts's replacement of William Rehnquist as chief justice was simply a conservative replacing a conservative. But Miers would succeed a swing justice. With her, I'm told further, Bush believes he would be altering the ideological makeup of the court, moving it to the right.
Miers talked about her judicial philosophy in her remarks at her nomination:
The wisdom of those who drafted our Constitution and conceived our nation as functioning with three strong and independent branches has proven truly remarkable. It is the responsibility of every generation to be true to the founders' vision of the proper role of the courts in our society. If confirmed, I recognize that I will have a tremendous responsibility to keep our judicial system strong and help ensure that the courts meet their obligation to strictly apply the law and the Constitution. . . . As White House counsel, I have enjoyed the opportunity to work with the members of the Congress, and that experience has given me an even greater appreciation for the roles of the legislative branch in our constitutional system.
Yet, is this statement merely rhetoric? Perhaps; but as the editors of National Review noted, her statement "is something of a platitude; but it is, at least, the right platitude." But those who know her best assert that those words were no platitude.
Possibly no one is closer to Miers than Nathan Hecht, a conservative, pro-life Texas Supreme Court Justice. As Marvin Olasky of World Magazine reports: "Hecht, 55 and never married, and Harriet Miers, 60 and never married, have known each other for 30 years and are – to quote Hecht – 'very close friends. We dated some. The relationship has been close.'" In speaking of Miers' judicial philosophy, Hecht – who has attended church with Miers for 25 years – told Olasky: "'She's an orginalist – that's the way she takes the Bible,' and that's her approach to the Constitution as well – 'Originalist – it means what it says.' He [Hecht] notes that her legal practice involved writing contracts rather than tort law, so she was always looking at the plain meaning of the words."
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As noted earlier, many issues have been raised during the debate over this nomination. It is time to examine some of those major points of discussion.
Issue #1: She is nothing more than a crony of the President
Characteristic of this charge is this statement in an article by Pat Buchanan:
Handed a once-in-a-generation opportunity to return the Supreme Court to constitutionalism, George W. Bush passed over a dozen of the finest jurists of his day – to name his personal lawyer.
Randy Barnett, a law professor at Boston University, goes even further and claims that because she is so close to the president, she should be disqualified. In his article "Cronyism," Barnett argues that based on Federalist #76 (authored by Alexander Hamilton in 1788), the Miers' nomination should be rejected by the Senate. Citing the Federalist Papers:
The necessity of their concurrence [i.e., Senate confirmation]. . . . would be an excellent check upon a spirit of favoritism in the President and would tend greatly to prevent the appointment of unfit characters from state prejudice, from family connection, from personal attachment, or from a view to popularity. . . . He would be both ashamed and afraid to bring forward for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same state to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.
Barnett concludes: "As the quote from Hamilton suggests, the core purpose of Senate confirmation of presidential nominees is to screen out the appointment of 'cronies,' which Merriam-Webster defines as 'a close friend especially of long standing.'"
Rebuttal: This apparent "original intent" argument is completely misapplied. As Ken Masugi of the Claremont Institute correctly points out:
Barnett's quotation from Federalist 76 about checking "a spirit of favoritism" applies not only to nomination of judges but to all presidential nominations. If author Alexander Hamilton meant this in the way Barnett wants to use it (to reject Miers), President Washington could not have nominated his close confidante [Alexander Hamilton] for Secretary of Treasury. (emphasis added)
Furthermore, if Barnett is right, then Washington also could not have nominated John Jay, John Blair, James Wilson, or the other original members of the U. S. Supreme Court, for they were all his "cronies" ("a close friend especially of long standing"); and John Jay was appointed as Chief Justice to the Court from within Washington's administration, having served initially as his acting Secretary of State. In fact, all of Washington's cabinet was composed of his "cronies." Barnett's interpretation of Federalist #76 is wrong. Nothing in those early documents precludes President Bush from nominating one of his close staff to serve on the Supreme Court.
Issue #2: She has no prior judicial experience (a negative)
Typical of the complaints in this vein are those raised by Randy Barnett in his op-ed for the Wall Street Journal:
To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. . . . A prospective justice needs to have wrestled with [issues] in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires. . . . Even a star quarterback with years of high school and college football under his belt takes years of experience and hard knocks to develop the knowledge and instincts needed to survive in the NFL. The Supreme Court is the big league of the legal profession, and Ms. Miers has never even played the judicial equivalent of high school ball, much less won a Heisman Trophy.
Pat Buchanan similarly laments:
In choosing Miers, the president passed over outstanding judges and proven constitutionalists like Michael Luttig of the Fourth Circuit and Sam Alito of the Third. . . . [W]hat was wrong with U. S. appellate court judges Janice Rogers Brown, Priscilla Owen, and Edith Jones?
This objection has been oft repeated: unlike judges John Roberts, Priscilla Owen, Janice Rogers Brown, or a host of others, Harriet Miers has no judicial experience and therefore no proven judicial philosophy – something that (they argue) is necessary before being elevated to the U. S. Supreme Court.
Rebuttal: This argument is fallacious. As pointed out in the book The First One Hundred Justices:
[O]nly fifty-eight of the one hundred justices elevated to the nation's highest court had had any prior judicial experience at all – and only twenty-two of the fifty-eight had served more than ten years on a state or federal bench. At the time of their appointment to the Supreme Court, sixty were not holding judicial office. (pp. 16-17)
Justices with no prior judicial experience before being placed on the Supreme Court include George Washington appointees James Wilson and William Paterson; John Adams appointees John Marshall and Bushrod Washington; Thomas Jefferson appointee Brockholst Livingston; James Madison appointee Joseph Story; and numerous others.
Miers is not even close to being the first to be nominated from within a presidential administration. Since 1933, 10 of the 34 Justices appointed have been nominated from within a presidential administration, including Byron White (appointed in 1962 from his position as Deputy Attorney General) and William Rehnquist (appointed in 1971 from his position as Assistant Attorney General), neither of whom had prior judicial experience.
However, just as there have been excellent justices with no previous judicial experience, there have also been judicial activists drawn from the same pool, including Earl Warren, Felix Frankfurter, and several others. Nevertheless, a lack of prior judicial experience is not a significant predictor of the quality of a justice, nor is it a pre-requisite for elevation to the Supreme Court. Paul Mirengoff of The Weekly Standard therefore accurately concludes:
Only by insisting that a Supreme Court nominee possess either judicial experience or a portfolio of scholarly writings can one pronounce Miers unqualified.
Issue #3: Miers is from outside the court system (a positive)
While some claim that Miers' lack of judicial experience is a disqualifying factor, others view it is a positive factor. For example, Jonathan Adler – a former White House lawyer who worked with Miers – explains:
Miers lives in the real world. She knows what the practical impact of a Kelo decision will be [the recent Supreme Court decision allowing the taking private property for economic causes], and that the laws of Nigeria and the European Union aren't terribly relevant to U. S. constitutional analysis. And as important, the people that she hangs out with don't give a hoot what Linda Greenhouse and the New York Times think.
In fact, Miers will enter the Court with the most private and commercial litigation experience of any member of the Court – a perspective badly needed on the Court. As Jonah Goldberg, editor of National Review, explains:
Miers . . . has over 25 years as a commercial litigator. . . . A good commercial litigator's practice is, in fact, one of the most intellectually challenging careers in the profession. Every case, every business you represent, and every deal is different. You have to explain unfamiliar and complex commercial issues (which are found in both "large" and "small" cases) to judges and juries. If you confine appointments to constitutional scholars, you're going to have nothing but academics and government lawyers – which is what you've basically got there now.
Indeed, the fact that Miers is from outside the judicial arena, and the fact that she has the private-practice background that she has, may actually help ensure that she stays conservative after she is placed on the Court. This point caused Marvin Olasky of World Magazine to change his own opinion; he explains:
I've long subscribed to a theory (most recently voiced by David Frum [of National Review]) that if a new SCOTUS [Supreme Court Of The United States] justice doesn't come in with a fervently articulated judicial philosophy, the social and media pressures to move left are likely to prove overwhelming. Our sub-blog brilliantly explains why Harriet Miers – graduate of SMU (not Harvard or Yale), lawyer at a solid Dallas firm for most of her career – may be immune: "The pressures of the 'left' are strongest on those that want what the left can provide, i.e. acceptance at fancy law schools and New York dinner parties. It doesn't seem like Miers (unlike John Roberts or Anthony Kennedy or Frum or Bill Kristol) has ever aspired to any of that stuff. . . . Why would she turn away from the people she has surrounded herself with all her life (conservative Christians from Dallas) in order to gain entry to an appreciative welcome at a Columbia Law School reception where she'll probably never be progressive enough or cool enough anyway?"
Columnist Thomas Sowell concurs:
The very fact that Harriet Miers is a member of an evangelical church suggests that she is not dying to be accepted by the beautiful people, and is unlikely to sell out the Constitution of the United States in order to be the toast of Georgetown cocktail parties or praised in the Click Here to Read and Post Feedback
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