Redstate

By Dan McLaughlin Posted in User Blogs — Comments (6) / Email this page » / Leave a comment »

So, President Bush has chosen White House Counsel Harriet Miers for the next Supreme Court opening.  First of all, a hat tip to David Frum; as I noted back in July, Frum was the first to float Miers' name as a dark horse pick for the Court.  Miers is profiled here by the Washington Post.

Color me less than thrilled.Yes, I know that she's known to be pro-life; in fact, that's nearly the only thing that seems to be known for certain about her views, given that in 1993 she led an unsuccessful battle to change the ABA's position on abortion (ht: ConfirmThem).  And I know that, as the White House is already pointing out, 10 of the last 34 Justices have been non-judges appointed from within the executive branch, including William Rehnquist, Byron White, Robert Jackson, and William Douglas.

But there are a large number of reasons to be less than thrilled with Miers either as a nominee or as a prospective Justice.  First, she's not young; at 60, Miers is older than almost all of the widely-discussed candidates.  Second, Bush passed over a number of people well-known to be brilliant academics, appellate advocates and/or appellate judges to get to her, including Michael McConnell, Miguel Estrada, J. Michael Luttig, Danny Boggs, and Edith Jones.  Miers may well be highly intelligent, but she has no such reputation.  Third, Bush also passed over experienced trial judges - Jones, Emilio Garza, Edith Brown Clement.  There's actually a lot to be said for having a Justice who has trial-level experience, since the Court does, after all, sit atop a system of courts, and a Court with nobody who has sat at the point where the court system actually interfaces with the general public - where factual evidentiary records are developed, juries are instructed in the law, injunctions are granted, and criminal defendants sentenced.  Of course, Miers was a commercial litigator for years, so that's a fair substitute for experience as a trial judge on the civil side, but I'm not sure if she has any criminal experience.  And much of her career path has been spent as an administrator: running a law firm, running the Texas Bar, running the Texas State Lottery, and working in the White House for five years.  She presumably hasn't seen a courtroom in a decade.

Miers may well play well on TV, as John Roberts did.  But Roberts entered the game with a powerful advantage:  his unchallenged reputation for brilliance and high qualification.  Her personal story - a never-married woman who worked her way up through male-dominated Texas law firms to become the first president of the Texas State Bar, breaking lots of 'glass ceilings' in the process - could be an inspiring tale to feminists, but since they are the #1 group automatically opposed to any Bush nominee, Miers' political benefits should be blunted.

Even Frum isn't overly impressed:

I have to confess that at the time, I was mostly joking. Harriet Miers is a capable lawyer, a hard worker, and a kind and generous person. She would be an reasonable choice for a generalist attorney, which is indeed how George W. Bush first met her. She would make an excellent trial judge: She is a careful and fair-minded listener. But US Supreme Court?

In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met. She served Bush well, but she is not the person to lead the court in new directions - or to stand up under the criticism that a conservative justice must expect.

By picking an advisor known well to the president but without well-known views or qualifications in the larger legal community, Bush is asking us to trust him.  And, personally, I do trust him.  But for the public at large, "trust me" works a lot better for a president with high approval ratings and lots of political momentum than for a Chief Executive who has been off his stride and on the defensive much of the year.  Especially given that Miers' selection plays right into the hands of the Democrats' recent drive to complain about Bush appointing "cronies."  I just can't think that Harriet Miers was the best person for the job.