Harriett Miers?:
I don't know much about Harriett Miers, but I thought I would blog a few tentative reactions to her nomination.
First, I am quite puzzled by President Bush's choice. According to news reports, Bush had instructed his staff to "find another Roberts." But Miers seems to be the anti-Roberts. As far as I can tell, she has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.
Of course, this doesn't mean that Miers can't be an excellent Supreme Court Justice. She had a reputation in Texas as a very good and very principled lawyer. And it's also true that never having been a judge isn't disqualifying: William Rehnquist had never been a judge before being confirmed to the Court in 1972. But Rehnquist was a bit different. While he hadn't served as a judge, Rehnquist had considerable experience with the issues that came before the Supreme Court prior to his nomination to be a Justice. Rehnquist was the head of DOJ's Office of Legal Counsel at the time of his nomination, and was himself a former law clerk to Justice Jackson.
Another thought is that, if Miers is confirmed, it seems quite possible that the effect of George W. Bush's two Supreme Court picks will be to retain the basic balance of the Supreme Court. Despite all the hullaballoo about the Court shifting to the right, the basic direction of the Court may remain "as is." It's hard to predict this, of course, as I have no idea how Miers would vote. But it seems plausible to me that Roberts will be a slightly more liberal version of Rehnquist, and Miers will be (if confirmed) a slightly more conservative version of O'Connor. The net result would be little change in the basic direction of the Court.
In any event, all of this is very tentative. I don't know much about Harriett Miers, so I'll be learning more about her over the next few days just like everyone else.
First, I am quite puzzled by President Bush's choice. According to news reports, Bush had instructed his staff to "find another Roberts." But Miers seems to be the anti-Roberts. As far as I can tell, she has no particular experience or expertise in any areas of law that the Supreme Court is likely to consider in the next twenty years; she has no history of having thought deeply about the role of judges in a constitutional democracy; and she is a complete unknown among the parts of the DC legal community that will now be considering her candidacy for the Supreme Court.
Of course, this doesn't mean that Miers can't be an excellent Supreme Court Justice. She had a reputation in Texas as a very good and very principled lawyer. And it's also true that never having been a judge isn't disqualifying: William Rehnquist had never been a judge before being confirmed to the Court in 1972. But Rehnquist was a bit different. While he hadn't served as a judge, Rehnquist had considerable experience with the issues that came before the Supreme Court prior to his nomination to be a Justice. Rehnquist was the head of DOJ's Office of Legal Counsel at the time of his nomination, and was himself a former law clerk to Justice Jackson.
Another thought is that, if Miers is confirmed, it seems quite possible that the effect of George W. Bush's two Supreme Court picks will be to retain the basic balance of the Supreme Court. Despite all the hullaballoo about the Court shifting to the right, the basic direction of the Court may remain "as is." It's hard to predict this, of course, as I have no idea how Miers would vote. But it seems plausible to me that Roberts will be a slightly more liberal version of Rehnquist, and Miers will be (if confirmed) a slightly more conservative version of O'Connor. The net result would be little change in the basic direction of the Court.
In any event, all of this is very tentative. I don't know much about Harriett Miers, so I'll be learning more about her over the next few days just like everyone else.
If the war on terror proves to be the extended conflict everyone imagines it will be, questions re: executive branch authority will command as much SCOTUS attention as any other category. Miers has worked for the White House in both a legal and a policy capacity. That makes her something of an insider when it comes to these questions.
I'm not saying this is good or bad, but it seems a key point.
But instead, much of the Right thinks Bush is acting out of cronyism. Has the Right finally joined the Left in concluding that Bush is all about doing favors for his buddies instead of acting on principle?
Will we really _learn_ anything about the nominee? How much did you learn about Roberts via the Media, blog or otherwise. I don't expect we will learn _anything_ interesting about the nominee.
Second Question: Politically speaking, could the Administration selectively waive privilege and release the documents that make her look good w/o releasing the ones that make her look bad? (did it do that with Roberts?)
If most or all of those cases suddenly are conservative decisions, that would change the balance of the court a great deal. Add to that the public's lack of knowledge of whether Miers would follow O'Connor's example in making narrow decisions, and it seems necessary that the Senate learn a great deal about her judicial philosophy before voting on her nomination.
Now, I'm somewhat left of center, but I was hoping that the Roberts nomination might have helped end this can't-nominate-prolific-intellectuals cycle: if (B), "proven brilliance and unquestioned qualification," could help a strong conservative get half the Dem votes... well, that would be a nice precedent; McConnell, for example, would've been confirmed under that rule.
But apparently the White House drew the exact opposite lesson: Roberts passed because of (A), his lack of a paper trail.... Of course, that's virtually the only thing he has in common with Harriet Miers.
(Disclaimer: I'm open to the possibility that Miers is a genius, but I just don't see a lot of evidence of it.)
Miers is a big zero. Who knows what she thinks. She probably thinks Wickard v. Filburn is fine - it's precedent, after all!
How is this a reason the President should not nominate Ms. Miers?
In other words, she's like 99.9% of the practicing bar (John Roberts having come from the 0.1% remainder).
Law profs are going to be her biggest critics. No offense intended toward our esteemed hosts here on VC, but the law prof component of the bar is already adequately-, and perhaps over-represented on the Court (which is one reason we have these 3-2-2-1-1 splits). I think the diversity she brings as a practicing lawyer is much more significant than the diversity she brings as another woman.
Replacement of Justice O'Conner is a sine qua non of overturning Roe v. Wade. The President likely wanted someone to whom he is personally close enough to cut a side deal whereby Roe will survive unless and until Jenna and Barbara get sober