White House counsel Harriett Miers will be nominated to the Supreme Court. I know absolutely nothing about Ms. Miers, beyond the basics from the media. But my initial reaction is that it's unfortunate (but not surprising) that for both Supreme Court nominations, the president has chosen well-connected insiders with ties to the executive branch, rather than individuals who are more likely to bring a more "independent" perspective to issues of government and especially presidential power. And appointing his "personal lawyer" from Texas seems very Lyndon Johnsonish, and is hardly likely to repel recent charges of Bush Administration cronyism. On the other hand, I'm please that Miers is (a) not from an elite law school; (b) not a federal judge; and (c) spent the vast majority of her career outside the beltway. All good things to bring new perspectives to the Court, and, in the case of (b), break a silly tradition [that Justices MUST be from the federal bench] that has evolved.
UPDATE: Comments on the conservative "confirmthem" site are apoplectic. This nomination may give the president some problems with his base.
FURTHER UPDATE: What do Miers and Roberts have in common? They both have significant executive branch experience, and both seem more likely than other potential candidates to uphold the Administration on issues related to the War on Terror (e.g., Padilla and whether a citizen arrested in the U.S. can be tried in military court). Conservative political activists want someone who will interpret the Constitution in line with conservative judicial principles. But just as FDR's primary goal in appointing Justices was to appoint Justices that would uphold the centerpiece of his presidency, the New Deal, which coincidentally resulted in his appointing individuals who were liberal on other things, perhaps Bush sees his legacy primarily in terms of the War on Terror, and appointing Justices who will acquiesce in exercises of executive authority is his priority, even if it isn't the priority of either his base or the nation as a whole. Such Justices may be coincidentally conservative on other issues, just as FDR's nominees moved the USSC generally to the Left. Thoughts?
I hate identity politics.
This nominee doesn't seem to have any judge experience, but I don't think that much matters, either. It brings new perspective.
While the President has been damn good on judges so far, this pick is dissappointing and will bring on a torrent of cronyism charges.
He could have given the base a bona fide conservative like Luttig, Alito, Williams ect... Seems like a missed opportunity.
Hope I am proven wrong over time, but this was not a great pick on it's face.
If the federal judges only is the silliness, fine. If the tradition of appointing justices who have been judges in the past is the "silly" part, then I'd have to disagree. I don't think that prior judge experience should be an absolute prerequisite, but I also don't think it's silly to feel better about choosing a nominee with judicial experience than one without it.
"Perspective" isn't necessarily good. I'm sure that Jeremy Shockey would bring "perspective" to the Supreme Court, but not the sort that anyone would find desirable. He's certainly not a top-3 law school type, nor has he ever been a federal judge.
From Miers' bio, she certainly seems to be qualified. I hope that the Senate treats her fairly and I hope that it does turn out that she's up to the job.
Sorry, but on what basis is she qualified for the Supreme Court? That she was the first female president of the Dallas Bar? That she served on the Dallas City Council? Not only is she "arguably unqualified," she IS unqualified.
2. In what way is being "from an elite law school" a negative?
Bush et al. convinced alot of non-political evangelicals to get involved. They just proved that politics is just lies. They just lost a huge portion of their base; at least the part that became activist and will now tell their troops to let the Devil have the world.
She's contributed to the Democratic Party, Al Gore, and Lloyd Bentsen. I need some scotch.
Breadth of opinion? Anti-elitism?
Association with organizations of lawyers, and links to the occasionally corrupt and always poorly run Dallas city government. I am not impressed at all.
It looks like conservatives are starting to see the same qualities in Bush that we liberals have been talking about since 2000 (and Texas liberals since before then).
Then, by definition, she was part of the Democratic party at some point, regardless of what her politics or positions look like.
And would explain the donations, at least some of them.
Where does C.J. Marshall fit into your scheme?
Everyone will note that when she sent her "partner" to the Texas Legal Auxillary meeting at the Texas annual bar meeting, she sent another woman, though she was against identify politics on the state bar level, feeling that a gay/lesbian/etc. section would be a step backwards, not a step forwards.
The democrats ought to be pleased, not complaining.
Are you alleging that she's a lesbian?
Most smart lawyers are qualified to be trial judges. But this is the Supreme Frickin' Court!
At least I sure hope that's where the President got this idea, because that would suggest that there's an idea behind this.
I don't think being from an elite law school is a negative, but nominating Supreme Court justices exclusively from the ranks of elite law school alumni certainly is. High court candidates with a sharp intellect and an extraordinary career deserve consideration regardless of how high the law school they attended was ranked. And when a nominee from a non-elite law school is offered to the Senate, it is generally a good thing because this notion is reinforced.
Now, whether Ms. Miers' career qualifies as "extraordinary" or her intellect "sharp" is a matter on which I have reserved judgment.
I disagree strongly. Most smart lawyers are qualified to be appellate judges. Trial judges often have to rule from the gut, so common sense is more important than raw brainpower. But the really good ones have both.
1) Not by any stretch an intellectual heavyweight. Maybe as smart as the average Justice, if we're lucky. In that respect, another O'Connor, who was, in Scalia's memorable phrase, "dumb as a post."
2) As with Souter, we have to take the President's word that she isn't going to "legislate from the bench." But once Justices are on the Court, with life tenure, they have a habit of forgetting their ties to the men who appointed them. The power goes to their head, they start to look forward to the favorable editorials in the NYT, they start believing that they can use their power to move the country in a progressive way, blah, blah. It takes someone with a strong and well-developed judicial philosophy, a long-held commitment to judicial restraint and faithfulness to the actual words of the Constitution, to resist the temptations of power.
3) The fact that she has never served as a judge is not particularly damning. It used to be common for non-judges to be nominated to the Court (e.g., Rehnquist, Powell, Warren, Frankfurter, Douglas, White, R. Jackson, Goldberg, Black). I can think of plenty of non-judges who would make great Justices (Miguel Estrada or Larry Thompson or Ted Olsen, for example). But at least from the publicly available information, it's hard to see that Meier is of that caliber.
4) It's pretty obvious that this appointment was driven by the desire to nominate a woman who at least arguably was qualified and who would be difficult to filibuster. So, we get Souter-lite.
I clerked for a (state) supreme court justice and my legal skills, narrowly defined, may have been as good as his. He supplied more wisdom and perspective than I will probably ever have. I do not know if Miers has either wisdom or perspective, but time as a federal judge would do nothing to improve either. Assuming that she has wisdom and perspective, and is willing to learn, I could teach her the skills that she needs (assuming that she lacks them) in 45 days.
Finally, confirmability is not irrelevant. If the only consideration were qualifications in some (mostly) objective sense, then the nominee should be Judge Edith Jones. Ignoring the confirmation process would, however, be the final proof that the administration is divorced from reality.
Miers would not have been my first choice, or second, but that is not the standard. With luck, she may bring a different perspective to the Court.
"[T]he worst kind of squalid cronyism. Abe Fortas in a dress."
Robert Jackson was Solicitor General and Attorney General of the United States before being named to the Supreme Court. He had a reputation as an excellent litigator. So no I don't think we can thus conclude that any lawyer of any caliber is therefore qualified for the Supreme Court.
No opinion on the nominee.
"Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they?" - Roman Hruska in defense of Harold Carswell on the charges that he was 'mediocre'
W isn't much of a second amendment guy ... supporting the Assualt Weapons Ban ... AG Gonzales' Agents confiscating weapons in NO ... etc. So I'm concerned. But, the reality is that Kerry as President would be worse.
American citizens arrested on American soil and held indefinitely without being indicted? No problemo!
(The more I think about the Padilla case, the more I realize that there are few if any conservatives left in America. Very sad, because a liberal-conservative balance is a good thing to have. Of course, not many liberals either. All we have is identity politics, including the identity of "fundamentalist rabble-rouser.")
Do conservatives generally share the president's view of the extent and purpose of executive authority? Do they agree with me that the president's views are as I have described?
Only Thomas was willing to argue for an Imperial President.
This Miers is getting everyone in a ruffle, so Bush is probably just snickering now.
Yglesias quotes David Frum:
In the White House that hero worshipped the president, Miers was distinguished by the intensity of her zeal: She once told me that the president was the most brilliant man she had ever met.
Obviously, this person shouldn't be trusted to watch your dog, let alone sit on the high Court. (Unless she really is a crypto-lesbian, &that was her ironic comment on male intelligence in general?)
And no, don't pile on for my saying that W.'s a moron. I didn't say that. But is he really "the most brilliant man" that ANYONE has ever met? Come now.
I do not disagree with you. I was mostly addressing the education and federal judge points. If I came across as supportive when I intended to come across as optimistic I apologize. If I had seen Observer's post before I hit "POST COMMENT" I probably would not have bothered.
No, and I think the bothersome thing is that there's been no "need" for it yet. The curious thing about Padilla, Hamdi, etc, is that the people in question weren't exactly sitting on a gold mine of information, and the circumstances haven't been so critical as to suggest why in the world this process would be needed. If Padilla knew that there was a bomb in the city of Miami set to go off in two hours, I could see hoe you could morally justify, even if not legally justify, some, um, "expediated" legal procedures.
But Padilla is a hack, probably acting alone. I'm not convinced that anyone in Guatanamo was ever crucial to Al Qaeda's operations - just foot soldiers.
So we've basially created a massive controversy and a distraction - never mind the legal implications down the road - over nobodies.
I think she's confirmable despite the discomfort of the conservative base, because the republicans in the senate aren't about to vote against the president's nominee, and the democrats are probably overjoyed. Unless someone digs up some serious dirt on her, she's in.
With that said, I think she's certainly not "highly qualified" for the job, and if the ABA determines she's actually "unqualified" that could still torch the nomination.
Frankly, the big prize for the Bush administration isn't the O'Connor slot, but the prospective replacement of Stevens should he retire. Perhaps by putting up such a puff nominee, they feel they will have less opposition to the latter. O'Connor was a lightweight moderate, so Miers won't substantially change the balance of the court except to weaken her slot further.
Miers was apparently the point woman on selecting judicial nominees, so presumably she had a great deal to do with the selection of Roberts. Perhaps she is expected to be deferential to Roberts' opinions on the court?
"Breadth of opinion? Anti-elitism?"
Sorry to have taken so long to check back.
Ah... I get the sense that people always think of law as being like politics or literature. But... Law is a profession, in a way that politician and novelist are not. There's a strong degree of linearity of competence. You never celebrate when a hospital chooses a doctor from Ole Miss' medical school over a Johns Hopkins doctor. Why avoid elite law school lawyers?
You have it totally completely wrong about medical schools.
(1) Your analogy to medical schools isn't very helpful. There is no elite medical school in the same sense as an elite law school. It is the residency program that carries all the weight, because that is where the most important medical training takes place. Grades and Boards scores count for more than the name of the medical school, unlike the legal profession.
(2) Your linearity of competence, in my opinion, is fabulously, utterly wrong. There are a tremendous number of outstanding lawyers from non-elite law schools who, by virtue of scoring a point or two lower on their LSAT, didn't get into a top 5 law school and consequently had a harder time landing as high profile a job or clerkship than their "elite" counterpart. Law school admissions are geared as a predictor of how well one will perform in their first year of legal training, not their career as a whole. I have often heard said of some ivy league law schools, "the hardest part is getting in."
(3) I hope your snide comment about Ole Miss' medical school was not meant to denigrate standards of care in the Deep South. I am far more comfortable placing my life in the hands of a doctor from Mississippi or Alabama, where I would wager the medical care is better and more advanced, than with a harried and HMO-burdened resident at Columbia-Presbyterian.
I didn't want that point missed, so I put it first. Now:
1) The residency you get is intimately tied to where you went to school, as it is with summer associateships in law. the best students from the best schools get the spots that give the best training.
2) There are, indeed, a tremendous number of lawyers who are fantastically beyond competent who didn't go to top-tier law schools. That said, top-tier law schools, at least in the New York area (yes, I know, a near-fatal caveat in this crowd, but it's the largest legal market in the country, so it has a fierce effect on legal culture nationwide), put much more of an emphasis on the kind of theory and reasoning method that goes into writing an appellate decision than do the others; for that matter, when you go to a jury trial, you're better off with a Hofstra lawyer than an NYU lawyer. But when it comes to decision writing, top-tier-school-trained judges have just received better training in the relevant methods.
Also, I disagree that the distinctions are meaningless. there aren't 5 elite schools in the country. There are about 20-- enough to encompass a wide range of undergraduate intstitutions and LSAT scores. Obviously jumping from number 20 to number 21 doesn't make much of a difference, but, speaking as a non-Harvard student (with something of a grudge against the crimson monster, to boot) I have been more impressed by Harvard law students' intellect than I have been by students at any other school. The student body is *actually* smarter. I don't see why we shoudl seek to limit the influence of the kinds of entities that encourage the grouping of extremely intelligent people.
Your point about the number of elite schools is well-taken, but I think that a look at a nominee's career is far more instructive than where they went to law school. If one is weighing two candidates with similarly impressive legal careers, is it really so important (or dispositive) where they went to law school?
This is probably the dumbest thing Bush has done to date, and that says something. Republican Senators should reject the President's choice. I do not want to see President Bush suffer a defeat, but the rule of law and the Supreme Court is more important than one's party or its figurehead. Bush betrayed his party and failed to follow through (or even try) on his promises, and he needs to be taken to task for it.
I agree with prior opinions that Bush's Grand Design here is to get a justice who will not check his expansive view of executive power. I still wonder with things like this and the Patriot Act. One wonders how the Administration and their allies feel about the thought/possibility of these tools landing in Hillary's hands in 2009?
Since when did it become a bad idea for a judge to have a little experience before depriving them of all judicial accountability? Plucking Clarence Thomas, with 2 years experience on the court, and John Roberts, also with 2 years, is bad enough but a person with no judicial experience? Out of interest, in following this trend, will he be replcaing her as White House Counsel by picking a new graduate from Harvard or Yale? Or (shock, horror) will POTUS pick someone with experience in a similar role.
I had hoped for a judicial heavyweight to replace O'Connor, if a conservative was necessary could he not have found a Scalia or a Rehnquist? From the middle, another O'Connor? Someone who could give the Senate a reason to confirm them. Instead he has turned to his own lawyer.