Here we go again. Another pick for the Supreme Court without much–or, in this case, any–judicial experience. And that will make it hard for senators–or anyone else–to assess what sort of Justice Harriet Miers, currently George W. Bush’s White House counsel, will be if the Senate confirms her as Bush’s pick to replace the retiring Sandra Day O’Connor. In announcing his selection of Miers, Bush said, “I believe that senators of both parties will find that Harriet Miers’s talent, experience and judicial philosophy make her a superb choice.”
But what precisely is her “judicial philosophy”? And how can it be discerned? Miers has never been a judge (which should not be a disqualification). She spent most of her career as a corporate lawyer (Bush was once a client) before joining the Bush Administration as staff secretary. Does she qualify as a crony? According to the Los Angeles Times, Miers introduced Bush and Alberto Gonzales in the 1990s. (Given Miers’s close personal connection to Bush, senators might want to ask whether it’s good for the nation to have a Supreme Court Justice who has such a tight bond with a person whose decisions and policies come before the Court.) In private practice, she headed one of Texas’ largest law firms, Locke Lidell & Sapp, and as a trial litigator she represented Microsoft and Disney. She also racked up a series of firsts: first woman to lead a major law firm in the Lone Star State, first woman to become president of the Dallas Bar Association, first woman to become president of the state bar.
But–again–what is her “judicial philosophy”? It seems that even conservatives are not sure–and worried. Conservative bloggers and commenters quickly expressed anxiety over this nomination, not knowing if Miers is truly a conservative. “Utterly Underwhelmed,” proclaimed conservative blogger Michelle Malkin. On one conservative site, a reader posted campaign finance reports showing that Miers donated $1,000 to the Democratic Party in 1988 and $1,000 to Al Gore’s presidential campaign that year, as well as $1,000 to a Democratic senatorial candidate the previous year. (Egads! Maybe this is not a disaster of a pick for Democrats.) Soon after Bush unveiled the Miers nomination, David Frum, a former Bush speechwriter, observed:
I worked with Harriet Miers. She’s a lovely person: intelligent, honest, capable, loyal, discreet, dedicated….I could pile on the praise all morning. But there is no reason at all to believe either that she is a legal conservative or – and more importantly – that she has the spine and steel necessary to resist the pressures that constantly bend the American legal system toward the left.
I am not saying that she is not a legal conservative. I am not saying that she is not steely. I am saying only that there is no good reason to believe either of these things. Not even her closest associates on the job have no good reason to believe either of these things. In other words, we are being asked by this president to take this appointment purely on trust, without any independent reason to support it. And that is not a request conservatives can safely grant.
So if a former White House co-worker is unclear about Miers’s “judicial philosophy,” what’s a senator to do? It seems it will take much probing to determine whether Miers’s views on issues of constitutional law make her a “superb choice.” But before any Democratic senator could raise a question, Republican Senator Bill Frist, the majority leader, was telling them not to push for too much information. In a press release, he stated,
As we begin the confirmation process, I hope the Senate continues to move beyond the partisan obstructionism of the recent past. I hope we carry forward the lessons learned from Chief Justice Roberts’ nomination….A bipartisan majority of senators also agreed that senators can make an informed decision on the fitness of a judicial nominee by focusing on the individual’s qualifications and not her political ideology and by looking at the individual’s record, testimony, and writings, without probing into confidential and privileged documents. Finally, a bipartisan majority of senators agreed that we should not ask or expect nominees to compromise their judicial independence by pre-judging cases or issues that may come before the court.
Here was a warning: don’t go after documents Miers has written or advice she has given while she has worked in the White House. But that might be necessary to suss out her “judicial philosophy.” (By the way, I’d like to see a Democratic senator ask her how the counsel’s office has handled the Plame/CIA leak case. Ms. Miers, can you tell us what advice you gave to the President or anyone else in the White House when evidence recently emerged showing that Karl Rove and Scooter Libby had passed classified national security information to reporters? Can you tell us how the counsel’s office reacted to this evidence, which showed that the White House had previously misinformed the public when it declared that Rove and Libby were not involved in this leak?) After decades of defending corporations and a few years working in the White House, there is not much of a record upon which to judge Miers’s “judicial philosophy.”
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Miers has not left many footprints. A quick search of articles in the Lexis-Nexis database disclosed little material of note, certainly no clues. In a profile of her last year, Legal Times described her as “one of the most discreet, most private and most protective members of George W. Bush’s inner circle.” That profile also noted that her tenure as top domestic policy adviser in the Bush White House was “problematic.” Apparently, she was more focused on process than policy. Legal Times reported that “she did raise eyebrows early in Bush’s first term by arguing against eliminating the American Bar Association’s 50-year-old role of vetting potential federal judiciary nominations, a move led by [then White House Counsel] Gonzales.” Miers was defending the institution she once helped lead, but booting the ABA out of the judicial process was a top-priority item for rightwing activists. That’s more grist for the conservative bloggers–and more reason for them to wonder where her ideological loyalties lay.
So here’s an idea. Perhaps right and left can join forces in a campaign called Harriet, Give It Up! The point would be to demand that she and the White House provide enough details so that senators–and all Americans–have sufficient information to evaluate her “judicial philosophy.” If this means answering questions related to Roe v. Wade, so be it. Let’s have it all out in the open–and then a real fight. Unlike John Roberts Jr., Miers would replace a swing-vote justice. And many rightists do not want to take a chance. They want a champion upon whom they can count to undo Roe and advance other conservative notions. Prior to the Miers appointment, Senator Sam Brownback, a social conservative Republican from Kansas, said he would want to know much about the next Supreme Court nominee’s views before casting a vote. (He is, of course, looking for a Justice who will undermine, if not eliminate, abortion rights.) Brownback should get his wish.
Disappointment among conservative activists and writers is certainly not bad news for Democrats and progressives. But the bottom line remains: Miers is an unknown when it comes to the critical issues facing the Supreme Court and the nation. She sure is no liberal. But will she be a Justice in the mode of Antonin Scalia and Clarence Thomas–that is, the type of jurist Bush promised his conservative base he would nominate? There is no telling at this point. But isn’t it in the interests of both the right and the left to find out before the Senate votes on this all-important nomination?