“Harriet Miers should not grow up to be on the United States Supreme Court.”
The cynical among us may be forgiven for wondering whether we still do live in a republic, for the simple pulverzing fact is that the great bulk of the really vexing questions that confront this nation — those questions that drive right to the heart of who we are as a people — are in our day answered by the United States Supreme Court. That the Supreme Court has no constitutional authority to answer many of these questions is immaterial. The Court has become our Legislator. The inevitable consequence of this development, whatever one may think of it, is that no American patriot can regard the nomination of a new Justice with indifference.
As a consequence, there is profound disappointment today on the right. Harriet Miers was rumored as the next pick for the Supreme Court, but many people laughed off the suggestion. Some of those who were laughing are now crying. Still others are abandoning hope. Said one correspondent, “This Presidency is adrift.” From what we have seen lately, we tend to agree.
For all we know, and we know very little, Harriet Miers is the second coming of Antonin Scalia. But, we do not know. What we know is encouraging to the extent that she might be right on life issues. She did actively oppose the American Bar Association’s position. Assuming that Miers is a conservative jurist, we still cannot, at this time, accept or endorse this nomination.1
Many lawyers like to think that one day they could grow up to be on the United States Supreme Court. Those that do, however, are usually from top tier law schools. Their careers are followed by stints in the state judiciary, federal judiciary, Justice Department, or academia. Those picks that originate from government or from academia, usually have stellar careers and brilliant academic resumes, coupled with impressive writings often in academic journals. Anyone may be able to grow up to be President, but not just anyone can or should grow up to be on the United States Supreme Court.
From what we know, Harriet Miers should not grow up to be on the United States Supreme Court. She has an impressive career of “firsts” as a female attorney in Texas, but those are not enough. 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.
Many of the President’s defenders would argue that Harriet Miers is like Chief Justice Rehnquist, in that she worked for a Presidential administration, but had no experience on the bench before becoming an associate justice. That ignores the fact that Chief Justice Rehnquist graduated first in his class at Stanford, clerked for Justice Jackson, and had a stellar career at the United States Department of Justice.
Had the President been interested in competent jurists from unique walks of life, he could have chosen Michael Luttig who knows firsthand the devastation that crime can cause from the savage murder of his father. He could have chosen Karen Williams who was first a school teacher before going on to get a law degree. He could have chosen Janice Rogers Brown, a conservative black woman who worked her way all the way to the California Supreme Court and then was appointed to the United States Court of Appeals. He could have chosen Miguel Estrada, an immigrant to this country who had an impressive career in the Justice Department with a paper trail to prove his fitness and qualifications and who suffered the loss of the wife he loves. All of these potential nominees have unique experience in their personal lives and distinguished careers in law beyond just being great lawyers.
We can be convinced that Miers is stellar. We can be convinced that Miers will be an originalist willing to reject the liberal dogma of Roe. But from where we sit now, this is a profoundly disappointing nomination, a missed opportunity, and an abdication of responsibility to make sound, well qualified nominations. Whether it is also a betrayal of first principles is still to be determined.