Well! We have pointed out that George W. Bush likes to surprise
people, “people” meaning his foes. The John Roberts appointment was
classic Bush, flummoxing the interest groups and Senators who had
loaded up for bear — but not that kind of bear. Now, with his
nomination of White House counsel Harriet Miers to the Supreme
Court, the President has surprised us — those of us who write on
right — and we’re not the least bit pleased.
The heavyweight op-ed essayists (George Will), the Christian
watchdogs (our own George Neumayr), the White House watchers (David
Frum), the neocon leadership (Bill Kristol), the beltway law
prophets (Jonathan Turley) have all weighed in with varying degrees
of indignation and dismay. Only Mark Steyn, among the leading
voices of conservatism, rendered a modest wait-and-see verdict that
was more positive than not. Perhaps his experience of parliamentary
governments makes him expect less.
To distill the criticisms: Harriet Miers has never been a judge.
She has no experience of constitutional law. She has left no record
of constitutional scholarship and no “substantive contribution to
the development” of the law (Turley). She does not have a
first-rate legal education. Her appointment reeks of Bush cronyism.
She would “grow” in office, i.e., turn liberal over time. She’s an
intellectual lightweight. She is therefore “unqualified.”
WHAT, EXACTLY, DOES IT TAKE to “qualify” for the Supreme Court?
What kind of job is it? What skills does a Supreme judgeship
require? What does a Justice do, day in and day out?
The Miers critics say that Constitutional scholarship should
figure prominently in a Justice’s skills. And a Justice should have
experience on the bench, preferably in some higher-up position.
(Point in passing: A judge who has spent years in municipal court
handling drunks, prostitutes, family fights, drug charges, auto
accidents, and burglaries can probably compile a more valid record
of wisdom, or its lack, than any other. Solomon owes his rep to a
child custody dispute.)
But where do those Constitutional creds figure in the day-to-day
work on the SCOTUS? The job aims, of course, to defend the
Constitution. To do that, you have to compare the Constitution to
the case before you. With every new decision comes learning a whole
new case, or set of cases.
So a Justice reads. As a Justice, you have to be able to read
reams. Arguments. Decisions. Transcripts. Documents offered in
evidence. Petitions. The ridiculously named “briefs.” Technical
material pertaining to the case at hand, which can be
extraordinarily tough (think Netscape v. Microsoft). Tom
Kite once said that a professional golfer had to be “an ace
walker.” Just so. A Supreme Court judge has to be an ace reader.
Humorist Garrison Keillor, at the time Ruth Bader Ginsburg was
nominated, argued that that position was traditionally “the
writer’s seat” and made a case for himself as nominee, thinking of
a quiet life of scholarship and writing. (Keillor also fancies
himself wise.) Seriously, he’d hate it. Much of a judge’s reading
has no intrinsic charm or interest. This is a dull job for anyone
but a law maven.
A CORPORATE LITIGATOR DOES much the same thing. Only difference is,
a litigator has to assemble his reading materials into an argument
and present and defend that argument. A Justice has to come to a
decision.
Harriet Miers has spent most of her career as a litigator. She
was good at it. She rose to become the managing partner of one of
Dallas’s most powerful law firms. This is relevant experience. As a
Justice, she will have to hire, train, and lead a staff of clerks
and assistants. (Somebody has to help do all that reading.) If
she’s smart in the ways of organizations — and her entire career
suggests outstanding organizational skills — she will hire clerks
who can help her into the culture and experience of the Court, and
whose knowledge of Supreme Court history, lore, and decision-making
exceeds her own. One or more of Rehnquist’s clerks should be
available.
Her experience also suggests she will find what in the New York
City Police Department is called a “rabbi” — a career mentor and
guide. Until now, she has had the best there is, the President
himself. On the Court, she will be beyond his reach. One suspects
Antonin Scalia will offer an arm, and not only a partisan one. (On
the Court, off-court, Scalia and his wife socialize with Ruth Bader
Ginsburg and her husband.)
IT WOULD HAVE BEEN NICE to see a conservative icon get the
appointment. Though, remember, the initial reaction to John Roberts
was, “Who?” With John Roberts, as Roberts himself proved, President
Bush appointed a future star. With Miers, he appoints a soldier.
And the Court needs soldiers, too. Miers is certainly smart enough
— dummies don’t major in mathematics, as she did at SMU. She will
probably soldier through her confirmation hearings without raising
anybody’s eyebrows. Remember the Clarence Thomas hearings before
Anita Hill showed up? Thomas was dulling the committee to
capitulation. Expect about the same from Miers.
