The Trouble With Harriet, Day Two

After a depressing Monday, the first pundit I checked this morning was Michelle Malkin:

Well, it's a new day. Upon sober reflection, President Bush's nomination of Harriet Miers to the Supreme Court appears...even worse than it did 24 hours ago.

Bill Dyer, a/k/a Beldar, and Hugh Hewitt are among the few conservative bloggers defending her, along with American Thinker publisher Thomas Lifson. They're wrong:

• Smarts: RedState summarizes the evidence:

  Miers did not graduate from a top tier law school. She has no string of impressive legal writings. She has never served as a judge (let alone clerked for a Supreme Court Justice or Circuit Court Judge). She has never had a practice focusing on issues relevant to the United States Supreme Court. She has had nothing in her career that indicates she is something other than just a great lawyer -- and being more than just a great lawyer should be a key qualification for one of the final arbiters of American jurisprudence.

  Professor Bainbridge agrees:

  You don't take a Saturday Night Special to an artillery duel. The Supreme Court is the big leagues. You don't bring your B team to the World Series. Miers may well be a smart lawyer. But she went to the #52 ranked law school in the country and then headed up a Dallas law firm that one of my colleagues who practiced in Dallas tells me got big but was not in the first rank.

  True, Miers has a math degree. But since becoming a lawyer, she's written only two legal articles, neither of which was a "law review" type serious work. Gregory Djerejian at Belgravia Dispatch is alarmed:

  What matters is serious intellectual depth, profound understanding of constitutional law, potential greatness. She fails on all three counts. And, with all due respect to a successful private sector attorney, I have to say rather dismally.

  How does Harriet Miers describe her early schooling? "'I really came out of high school believing I wasn't bright enough to be a doctor,' Ms. Miers told The Dallas Morning News in 1991." And an anonymous ex White House staffer warned Miers "can't separate the forest from the trees." Is it important that Bush didn't even attempt to burnish her brains at Tuesday's press conference?
  
  Houston lawyer Beldar defends Miers's education and intellect:

  As for her law school in general: No, it's not now considered to be a national powerhouse. But when I was heavily involved in recruiting new lawyers for both Houston's Baker Botts and for the Houston office of New York-based Weil, Gotshal & Manges in the 1980s, we considered SMU Law School to be a solid regional law school, particularly strong in business and corporate law. Its talent pool wasn't as deep, but its top graduates — like its law review editors — were every bit as qualified as the students we recruited from Texas Law School or from the top out-of-state schools. Dallas firms generally had an even higher regard for SMU, with many of the best lawyers from Dallas firms serving as adjunct faculty members there; some students who'd been accepted at Texas Law School, or even at out-of-state top-tier law schools, chose instead to go to SMU for its local connections if they intended to stay in Dallas. Some of SMU's competitors have probably caught up with it since then, but when Ms. Miers was a student there, SMU Law School was widely regarded as the second-best law school in Texas.

  David Garrow also is optimistic, sort of:

  Historically speaking, then, no one can argue that Miers is unqualified, or even underqualified, to be a Supreme Court justice. [But] there's no denying that Miers' résumé looks awfully thin in comparison to [Chief Justice Roberts']. Roberts graduated from Harvard Law School (notwithstanding just an “A-“ from Laurence Tribe in constitutional law), Miers from Southern Methodist. Roberts clerked for then-Justice Rehnquist, Miers for Dallas federal district Judge Joe Estes. Roberts went to work for U. S. Attorney General William French Smith and then President Reagan; Miers worked at a large Dallas law firm.

  According to Hewitt, Miers has one unique credential:

  Consider that none of the Justices, not even the new Chief, has seen the battlefield in the GWOT from the perspective or with the depth of knowledge as has the soon to be Justice Miers. The Counsel to the President has seen it all, and knows what the President knows, the Secretaries of State and Defense, the Joint Chiefs and the Attorney General.
  
  I suspect that the President thinks first and foremost about the GWOT each morning, and that this choice for SCOTUS brings to that bench another Article II inclined justice with the sort of experience that no one inside the Court will have.

  Other conservatives support Miers. Former Bush Press Secretary Ari Fleischer called Miers "very smart." And Dallas lawyer James Francis -- chairman of Bush's 1994 gubernatorial campaign, and now an investment advisor -- praised her as "a lawyer's lawyer [who] grasps facts very quickly, in terms of sizing up a situation. She doesn't make careless mistakes and doesn't tolerate careless mistakes in others."
  
  Ann Coulter calls Miers "a complete mediocrity." So it's no surprise that the obvious comparison with Harold Carswell already surfaced. Don't underestimate that thread: in humorless Washington, satire can be fatal.



• Law nerd: Last month, Beldar highlighted the new Chief's most striking qualification:

  John Roberts' career has been that of a secular monk dedicated to the study and preservation of pure law at its most highly distilled and refined level. It was his absolute dedication to and mastery of that realm which enabled him to shrug off every political entreaty or demand thrown at him by any senator.

  Yet only 10 days later -- and without retreating (or referencing) that assessment -- Beldar's own praise for Miers neither mentions scholarship nor claims any for the nominee.¹ Instead -- supported by MaxedOutMama -- Beldar tries twisting Miers's inexperience into an advantage:

  If you restrict Supreme Court nominations to those individuals who've spent their lives living in that rarefied atmosphere, pondering constitutional minefields to the exclusion of everything else, then you're going to end up with a Supreme Court whose members are out of touch both with America and with nuts and bolts legal practice. You're going to end up with a Court full of prima donnas who can't "just" concur, but instead feel compelled to write countless separate opinions.

  Haven't we seen this movie before? You know the one: "Justice O'Connor: Political Jurist." By day, a mild-mannered Ms in black robes; but at night she summons special powers to become--Supreme Legislator!
  
  Bush's selection likely will have broad and lasting implications for future nominations. Since public opinion began to reject Warren Court excesses in 1970s, conservative Republicans held the moral high-ground of neutral principles. We insisted the Constitution meant what it says; rejected result-oriented judicial legislation; we weren't the party of hypocrites. The anonymous Con Law Professor behind StealthLawProf echoes this concern:

  the GOP has lost all credibility with the public in presenting itself as the party that governs responsibly, respects the federal courts by appointing highly qualified jurists, and puts principle over politics in the courts.

  A Supreme Court nomination shouldn't force conservatives to choose between their President and their principles. As a minimum, "President Bush has wasted an opportunity to use the nomination process to try to advance the public understanding of what the battle over the judiciary is all about."



• Experience: Miers, of course, isn't a judge. And while not necessarily a pre-requisite, more than 30 years have elapsed since anyone other than a judge was nominated.² 'Associate Justice' shouldn't be an entry-level job.
  
  Boston University Law Prof Randy Barnett agrees, in the WSJ:

  To be qualified, a Supreme Court justice must have more than credentials; she must have a well-considered "judicial philosophy," by which is meant an internalized view of the Constitution and the role of a justice that will guide her through the constitutional minefield that the Supreme Court must navigate. Nothing in Harriet Miers's professional background called upon her to develop considered views on the extent of congressional powers, the separation of powers, the role of judicial precedent, the importance of states in the federal system, or the need for judges to protect both the enumerated and unenumerated rights retained by the people. It is not enough simply to have private opinions on these complex matters; a prospective justice needs to have wrestled with them in all their complexity before attaining the sort of judgment that decision-making at the Supreme Court level requires, especially in the face of executive or congressional disagreement.

  Some conservatives openly cheered for non-judges, or even non-lawyers! I concur with where Jonah Goldberg ultimately came down:

  [T]hese arguments veer off into anti-intellectualism, which is just a bad place for conservatives to be. Personally, I think conservatives must be the defenders of excellence and standards, even when that is inconvenient to other conservative ends." Several readers have made the case that she may not be that qualified, but she'd be a reliable vote for the more brilliant conservative justices. I'm all for reliable votes. But this borders on a celebration of hackery and I'm unsympathetic to that.

• Originalist: President Bush promised to nominate only Justices "who would not . . . write laws, but who would be strict interpretations of the Constitution." Miers has never publicly hinted at her legal philosophy. Is Bush certain Miers qualifies? Even if he is, how can anyone -- on either side -- assess her similarities to Scalia and Thomas--a not inconsequential motive for Bush's support from conservatives. Even CNN resorted to guesswork:
  
  
  
  (source: National Review)
  
  It's no answer to wait for forthcoming Senate Judiciary hearings. Having defended Roberts's right to be silent before the Senate, conservatives face an awkward conflict between blind faith and principle.
  
  In any event, as Professor Barnett says, a Supreme Court Justice should be better than 'no comment':

  Times like these demand a justice with a firm grasp on constitutional text, history and principles. Someone who can resist the severe pressure brought by Congress, by the executive branch, by state and local governments, and also by fellow justices to exceed the Constitution's limits on government power. Does anything in her record suggest that Harriet Miers will be that sort of justice? We do not need to wait for Senate hearings to answer this question.

  Some of the hope-over-experience crowd point to Ms. Miers efforts to overturn the American Bar Association's pro-abortion position. I remember those events well: I'd quit the ABA in protest, and pushed for its repeal. But we didn't debate Constitutional interpretation. Rather, our strongest argument was procedural: that, as a trade association for lawyers, taking political positions inevitably would offend both potential member lawyers and legislators. So Ms Miers opposition to the ABA's abortion position provides scant clues about her views on the Constitution.
  
  Still, score one point -- only one -- for Harriet, first noted by Hewitt, who passes along a readers insight reminding skeptics that Miers was, I am sure, "involved in many discussions about what it was that W wanted in a nominee [and thus] knows that he wants an Originialist, that he wants someone in the mold of Scalia and Thomas." Ronald Cass, formerly dean of Boston University Law School, also defends Miers on this ground.
  
  As does the President, who made the same point at this morning's press conference:

  [S]he knows the kind of judge I'm looking for -- after all, she was a part of the process that selected John Roberts. I don't want somebody to go on the bench to try to supplant the legislative process. I'm interested in people that will be strict constructionists, so we -- and I've told that to the American people ever since I started running for office. I said, vote for me, this is the kind of judges I'll put on the bench. And there should be no doubt in anybody's mind what I believe a judge -- the philosophy of a judge. And Harriet Miers shares that philosophy.

  Consider this: does Miers tout originalism at her Senate hearing? Would it gain more Republican support than it forfeits among Democrats?



• Immunity to the "Greenhouse effect": Many supposedly conservative Supreme Court Justices move left--a phenomenon conservatives call the "Greenhouse effect" -- after the NY Times' Supreme Court beat reporter Linda Greenhouse -- and liberals label "growth" or "maturity." The Christian Broadcasting Network recounts the sad story:

  The history of Republican presidents being burned goes back decades. Perhaps the biggest Republican presidential blunder was made in the 1950s by Dwight Eisenhower, when he picked Earl Warren to head the high court. . .
  
  Under Warren, the high court became an activist court. It started to exert its influence on society like never before. Some of their decisions were far-reaching, such as eliminating prayer and Bible reading in school in the early 1960s.
  
  Years later, President Gerald Ford nominated Justice John Paul Stevens to the high court. He turned out to be a pro-choice liberal.
  
  President Nixon also brought to the Supreme Court the infamous Harry Blackmun. He went on to write the opinion in the 1973 Roe v. Wade decision, which legalized abortion.
  
  President Reagan’s record was not much better. First, he nominated Sandra Day O’Connor, who proved to be a major disappointment to conservatives.
  
  Manny Miranda, former counsel on the Senate Judiciary Committee, said, "President Reagan wanted to have a woman, and at that time, in the early 80s, there were very few conservative women with a paper trail, and so they went with someone they knew a little bit, but they didn't know well enough."
  
  A few years later, Reagan had another chance to pick a conservative, and instead, that pick became Anthony Kennedy. Some of his opinions have gotten scathing reviews from conservatives.
  
  "They picked him because, on paper, he appeared to be a conservative, but when you actually looked at his life and his record and his choices, it showed a person who was a populist - and populists are like politicians. They put their wet finger in their air and determine where the wind is going and that is not what a judge should do," Miranda said.
  
  And then under the first President Bush - a blunder that conservatives are still talking about: David Souter. Not much was known about him at the time, but Bush advisers promised that he was a staunch conservative. Wrong. He sides with the liberal wing of the court nearly all the time.

  Tuesday morning, Bush insisted Miers would be immune:

  I know her well enough to be able to say that she's not going to change, that 20 years from now she'll be the same person with the same philosophy that she is today. She'll have more experience, she'll have been a judge, but, nevertheless, her philosophy won't change.

  Paul Mirengoff at Powerline is cautiously optimistic:

  I suspect, is that she's not likely to "grow in office." Having been through five years of combat with President Bush, I doubt that she cares much how the Washington Post or the liberal Washington social establishment views about her. Nor is she likely to be influenced by the liberal Justices, particularly the ones who voted against Bush in Bush v. Gore. Whatever kind of conservative Miers is now, if any, she's likely to remain.

  I wish I could be that confident. Without more, I'm leaning toward Jeff Goldstein's position: "Miers? Isn’t that the German word for “Souter”...?"



• Cronyism: Obviously, the President's choice has only one explanation, as Professor Barnett notes:

  Given her lack of experience, does anyone doubt that Ms. Miers's only qualification to be a Supreme Court justice is her close connection to the president? Would the president have ever picked her if she had not been his lawyer, his close confidante, and his adviser?

  Of course not.
  
  With the fur still flying about former FEMA boss Mike Brown -- whose previous experience was heading the Arabian Horse Association -- this is the worst possible time for Bush to elevate a relatively unknown, long-time advisor. And while proximity to the President shouldn't disqualify, neither is it enough, says the National Review:

  Being a Bush loyalist and friend is not a qualification for the Supreme Court. She may have been the best pick from within Bush’s inner circle. It seems impossible to maintain that she was the best pick from any larger field.

  For the best counter argument, see Scrappleface.



• Bush on the run: Powerline's John Hinderaker:

  It's hard to avoid the suspicion that Bush's nomination of Miers reflects some kind of deal with the Senate Democrats. Such as, the Dems gave Bush a list of candidates they would deem "acceptable" (pending Judiciary Committee hearings, of course), and Bush chose the best candidate he could off that list.
  
  Is that what happened? I don't know, but the theory seems to fit the facts. Why would Bush accede to the Democrats rather than fight for another Roberts-type conservative? The only reason I can think of is that liberal Republicans in the Senate, starting with Arlen Specter, told him they wouldn't back him up if he replaced Sandra O'Connor with a strong conservative. There are enough RINOs in the Senate to make such a threat credible, I think.

  Bush all but pleads guilty to the charge:

  I actually listen to the senators when they bring forth ideas. And they brought forth some really interesting ideas during the course of our conversations, some told me directly, many brought to me by people on my staff. And one of the most interesting ideas I heard was, why don't you pick somebody who hasn't been a judge? Why don't you reach outside the -- I think one senator said, the "judicial monastery."
  
  I thought it was an interesting idea. And I thought long and hard about it. I obviously looked at whether or not other Presidents had done -- made that decision; they had. And so, recognizing that Harriet will bring not only expertise, but a fresh approach, I nominated her. And she'll be a really good judge. And as I said, I appreciate the reception she's gotten at Capitol Hill. After all, they're going to -- they'll decide.

  MaxedOutMama and NRO's Rich Lowry and Kathryn Lopez speculate that defering to RINOs/liberals may signal that Bush now more earnestly embraces diversity/affirmative action for woman. And am I paranoid in worrying that leftist cautious optimism can be read as "one for you, one for me?" Not good.

In sum, I'm still open-minded. But Miers, and the Bush Administration bear the burden of proof--and a high hurdle.
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¹ Beldar admits "Harriet Miers hasn't argued in the United States Supreme Court." By contrast, John Roberts appeared before the Supremes 39 times before becoming Chief.

² Some well-regarded Justices had no judicial tenure. But, since World War II, only eight justices lacked prior judicial experience: William Rehnquist, Lewis Powell (both 1972), Abe Fortas (1965), Byron White (1962), Arthur Goldberg (1962), Earl Warren (1953), Tom Clark (1949), Harold Burton (1945). Three of those (Rehnquist, White and Clark) had been high-ranking lawyers for the Department of Justice.