Political Hay

Musings on SCOTUS and Harriet Miers

One surprise too many -- though it can be managed.

By 10.14.05

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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.

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About the Author

Lawrence Henry writes every week from North Andover, Massachusetts.