Don't Let Me Stop You

What the heck, you'll do what you want anyway.

Miers Nomination

Posted by Dan Draney on October 5, 2005

We’re still not quite sure where we stand on Miers for SCOTUS. Given that so little is really known about her, it’s hard to form a sound opinion.

Randy Barnett, writing in OpinionJournal charges cronyism and lack of qualifications for the US Supreme Court job. It’s like sending a high school or college quarterback to play in the NFL, says Barnett:

OpinionJournal – Extra: “Ms. Miers would be well qualified for a seat on a court of appeals, where she could develop a grasp of all these important issues. She would then have to decide what role text and original meaning should play in constitutional interpretation in the context of close cases and very difficult decisions. The Supreme Court is no place to confront these issues for the very first time.

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?”

Barnett compares her to LBJ’s appointment of his buddy, Abe Fortas, to the court, including the failed attempt to elevate Fortas to Chief Justice. Pres. Johnson actually persuaded a sitting justice to resign to create a seat for Fortas. Once on the court, Fortas used to brief LBJ on the court’s secret deliberations, and he lobbied senators on behalf of LBJ’s proposals. That’s cronyism on a whole different level.

George Will argues strenuously against the Miers pick in a similar vein. In Will’s view she’s not the best candidate, not even a good one, and Bush’s arguments for her amount to little more than “Trust me.” Will is not inclined to do so:

“He has neither the inclination nor the ability to make sophisticated judgments about competing approaches to construing the Constitution. Few presidents acquire such abilities in the course of their prepresidential careers, and this president, particularly, is not disposed to such reflections. […]

In addition, the president has forfeited his right to be trusted as a custodian of the Constitution. The forfeiture occurred March 27, 2002, when, in a private act betokening an uneasy conscience, he signed the McCain-Feingold law expanding government regulation of the timing, quantity and content of political speech.”

We must agree that GWB has been disappointing in defending the right of free political speech against “campaign reform.” We’re also quite concerned that a much needed national debate about the proper role of the courts has just been ditched. Whether this is political expediency, a sign of weakness, or just an unwillingness to take any risks with a winning hand, it is still a lost opportunity. We never got the issues out in the open with the Roberts nomination, and now it seems we either won’t have the debate at all, or we’ll be using the JV team instead of the first string.

James Taranto in Best of the Web makes the best case he can for the Miers nomination, quoting others’ comments along the way, but he doesn’t seem to quite convince himself.

Sen. Cornyn (R-TX) does better
, having the advantage of actually knowing the nominee. He points out that 41 of 109 SCOTUS justices to date had no previous judicial experience when nominated (including Rehnquist):

“Furthermore, Harriet Miers’s background as a legal practitioner is an asset, not a detriment. She has spent her career representing real people in courtrooms across America. This is precisely the type of experience that the Supreme Court needs. The court is full of justices who served as academics and court of appeals judges before they were nominated to the bench. What the court is missing is someone who understands the consequences of its decisions on the American people.

This experience gap is a real one. With the exception of the newly confirmed chief justice, John Roberts, no justice on the court has been an advocate in a court of law in the past 25 years, and Chief Justice Roberts was involved only at the appellate level.

Harriet Miers, by contrast, has a long and successful career as a lawyer representing corporate and individual clients in a variety of state and federal courts. I am confident that this background provides her with an understanding of the burdens of modern litigation, a recognition of the problems with frivolous lawsuits and an appreciation for tort reform.”

This is not a recap of Nebraska Sen. Roman Hruska’s infamous defense of “mediocre” nominee Harold Carswell. The SCOTUS is out of touch with normal people (c.f. Kelo).

“Anyone who has followed the Supreme Court in recent years knows that what the institution needs most is a dose of life beyond Washington. Last year, the court permitted a public display of the Ten Commandments in Texas, but not in Kentucky. It took nine justices on the court 10 different opinions to explain why this was so. The court is dangerously out of touch with America. Ms. Miers will help bring it back down to earth.”

This is a good argument for appointing an “outsider.”

Lot’s of good commentary on both sides at Confirm Them.

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