If the president wanted to choose a stealthy candidate for the Supreme Court, he could hardly have done better. Harriet Miers — former law firm managing partner, former president of the Texas Bar Association, now White House counsel — has no record of judicial decisions from which her judicial approaches can be discerned. The president undoubtedly thinks he knows her mind, and he surely does. But only in one limited sense, and that may have nothing to do with the manner she performs her duties on the Supreme Court.
Miers has apparently never served in a job that required her to perform independently. She has, as we know so far, not done the independent intellectual exercise expected of every Supreme Court justice. To be someone’s lawyer, a hired gun, is to provide, as Miers has, advice and representation that supports the client’s goals. In court or out, the lawyer must do his best to advocate the position the client desires. That means researching the law and precedent and applying them to the facts as will benefit the client’s position. A judge, especially a Supreme Court justice, is supposed to have no agenda and apply the Constitution only by its own words and precedent, and to do the same to state and federal law. It is only in judicial roles that someone can themselves be judged when nominated to the highest court.
Miers may well be another Scalia, as the president promised his nominees would be. But it’s just as likely — perhaps even more so — that she will be a Souter or a Stevens. A justice who, once relieved of the responsibilities of representing clients, finds a new ideology to match a new persona. There is no absolute criterion to disqualify Miers on the basis of her lack of judicial experience. But we have to recognize that the risk she poses is exponentially higher than a Brown, a Luttig or even an Estrada.
The president may have chosen Miers to douse some of the liberal firestorm that would have engulfed many other nominations. He probably hasn’t diminished the liberal fire by much, and to the extent he has it is by setting some of the right aflame. One of my sainted law partners used to tell me, “A judge never has a bad day.” And I would always answer, “Yes, but they make bad days for the rest of us.” For conservatives, Miers is a high-risk choice. She may bring commensurate rewards, but I’m not betting much on it.