Let us take a deep breath, and assess Supreme Court nominee
Harriet Miers.
Miers would never have been considered if she weren’t close to
President Bush, but some commentators have been a bit unfair in
declaring her totally unqualified. Miers was president of the
Dallas Bar Association and then the State Bar of Texas, an
accomplished corporate lawyer, and Counsel to the President. Yes,
there were a number of short-listed candidates with records much
more impressive than that, but her stats are comparable to several
lawyers whose first judicial job was on the Supreme Court. Nixon
nominee Lewis Powell’s most impressive stat was that he’d been
American Bar Association president. Byron White earned his
nomination by serving as Deputy Attorney General after using his
celebrity (he’d been a pro football player) to help John F. Kennedy
get elected. Pierce Butler was a former Minnesota state’s attorney
and respected private-practice lawyer (he counted railroad tycoon
James J. Hill among his clients) whose main claim to fame when
President Harding nominated him was not his resume but his
criticisms of University of Minnesota law professors.
As a non-judge, and a non-academic, Miers is the stealthiest of
stealth nominees. Liberal interest groups, who had stacks of
talking points on over a dozen nominees, had little to say about
Miers when her nomination was announced yesterday. Many
conservatives are disappointed at best; quite a few jurists with
strong originalist credentials were passed over. Clearly, the White
House is more averse to a tough confirmation battle than anyone
imagined; Senate Minority Leader Harry Reid reportedly urged the
White House to consider her.
What do we know about what kind of justice Harriet Miers will
make, if confirmed? Not much, though what we do know is somewhat
encouraging.
We know that she’s made reference, in a 1992 article for
Texas Lawyer to “the right to bear arms” on a list of
“precious liberties.” “As far as I know,” writes Second Amendment scholar Dave Kopel, “you
have to go back to Louis Brandeis to find a Supreme Court nominee
whose pre-nomination writing extolled the right of armed
self-defense.”
And we know that when she was active in the American Bar
Association, she urged that organization to put its official stand
in favor of legal abortion up to a vote among members. She donated
to Texans for Life (then Texans United for Life) in 1989. She’s a
member of a conservative evangelical church. The signs point toward
“pro-life,” and a pro-lifer is unlikely to uphold Roe v.
Wade.
The problem is that these are far from the only issues that will
face the high court. What limits are there on executive power in
wartime? To what extent do constitutional rights extend to
non-Americans? Does the Commerce Clause grant the federal
government unlimited power over practically any aspect of
Americans’ lives, as the Court’s liberals believe? Or are there
real limits to how much Washington can encroach on state and local
territory? And what about stare decisis, the principle of
leaving judicial precedent settled? Even Clarence Thomas and
Antonin Scalia have different approaches there (Thomas is much more
willing
to reconsider precedent).
We don’t know what Harriet Miers thinks about any of those
questions; having done almost no work on constitutional law, it’s
very likely that not even she knows. Given ABA ethical standards
that bar pronouncements on issues that judges can expect to rule
on, it’s unlikely that her confirmation hearings will tell us much.
We won’t get answers unless she’s confirmed and joins the court,
which seems likely. In the next term alone, there’s a partial-birth
abortion case and several federalism cases.
Remember that deep breath? It might not be a bad idea to hold
it.
