More than three decades have passed since a President nominated someone without judicial experience to serve on the US Supreme Court.
The last such nominations--those of William Rehnquist and Lewis Powell Jr.--were announced on the same day, October 20, 1971, by then President Richard Nixon. Nixon had run into problems getting sitting federal judges placed on the high court. His nomination of Clement F. Haynsworth Jr., chief judge of the Fourth US Circuit Court of Appeals, to fill the seat left vacant by the resignation of Abe Fortas, was rejected by the Senate in 1969. A year later, the Senate turned down Nixon's nomination of G. Harrold Carswell, a judge on the Fifth US Circuit Court of Appeals, to fill the same vacancy.
In the fall of 1971, with vacancies created by the resignations of Justices John Marshall Harlan II and Hugo Black, Nixon opted for Rehnquist, an Arizona lawyer with close ties to conservative icon Barry Goldwater, and Powell, a former president of the American Bar Association. And, while the Rehnquist nomination created a bit of a stir, both men were confirmed before the year was out--giving Nixon a pair of "wins" in his long wrestling match with an overwhelmingly Democratic and ideologically muscular Senate.
On the surface, it would not seem that George W. Bush would have any reason to imitate Nixon's approach. Bush's first pick for the high court, John Roberts, a member of the US Circuit Court of Appeals for the District of Columbia when he was selected, was easily confirmed to replace Rehnquist as Chief Justice--winning the support of every Republican and half the Democrats in the Senate. And the Senate that Bush is working with has a solid Republican majority and a soft Democratic opposition that is far more pliable than the one Nixon confronted.
Indeed, if Bush faced a challenge as he selected a replacement for retiring Justice Sandra Day O'Connor, it came from the Republican right. Supportive but unexcited by Roberts, social conservatives made it clear that they wanted to see an abortion-opposing, gay rights-rejecting judicial activist as the next nominee from the President who repeatedly told Republican rallies that his favorite members of the court were right-wing Justices Antonin Scalia and Clarence Thomas. Kansas Senator Sam Brownback, a conservative firebrand who entertains notions of seeking the Republican nomination for President in 2008, recently went so far as to suggest that he would vote against a Supreme Court nominee who lacked a "solid and known" record of opposition to reproductive rights, same-sex marriage and the wall of separation between church and state.
Brownback did not get his "solid and known" nominee. Bush just wasn't up for the fight.
Suffering from dismal approval ratings and unsettled by the burgeoning legal scandals involving the Republican leaders of the Congress, Bush went for the judicial-selection equivalent of a bunt. With his nomination of White House counsel Harriet Miers, the President has selected a non-judge so obscure--and so free of the burdens imposed by a judicial "paper trail"--that the Associated Press headlined a profile of her: "Bush's Court Pick Tends to Avoid Limelight."
In an interview earlier this year, Miers told the Dallas Morning News that it was her job to "stay out of the headlines."
She has done so with considerable success during a public career that, aside from brief tenure as president of the Texas State Bar Association, has pretty much been defined by her friendship with George W. Bush--who counted on her to help him sort out lingering controversies arising from his avoidance of the draft during the Vietnam War, and who then rewarded her with appointments to various positions during his gubernatorial and presidential terms. Now comes the ultimate appointment: nomination to a lifetime job on the nation's most powerful court.
That's quite a token of their friendship. But Miers has given Bush something, as well: a "stealth nominee" who ought to be able to sail through the toothless confirmation process with little trouble. Yes, of course, there will be grumbling from liberal interest groups--and even some conservative ones. But the precedent set by Roberts and other recent nominees--refusing to answer direct questions from members of the Senate Judiciary Committee and stonewalling requests for paperwork produced while serving in appointive positions--should serve her well.
The only hope that Americans will get a sense of where Miers is coming from before she puts on the judicial robes–-and it is a faint one indeed--is that members of the Senate will consult the Constitution and historical precedents before this confirmation process is done. They might look back to a page from the Nixon days.
The former President once complained that, by rejecting some of his nominees and subjecting the rest to tough scrutiny, the Senate was usurping his authority. Senate majority leader Mike Mansfield, a Western Democrat whose love of the Senate was exceeded only by his distrust of the executive branch, responded by explaining that the "advise and consent" clause in the Constitution meant that the Senate shared the president's powers when it came to filling court vacancies.
Nixon's slogan in his re-election campaign of 1972 was "Nixon--Now More Than Ever."
Faced with a stealth nominee for one of the most important positions in the land, and the rapid degeneration of Congressional checks and balances on the executive, we could use some Mike Mansfields in the Senate--now more than ever.