Miers, Calmly

The American Spectator ^ | 10/4/2005 | John Tabin

[veronica]

Let us take a deep breath, and assess Supreme Court nominee Harriet Miers.

Miers would never have been considered if she weren't close to President Bush, but some commentators have been a bit unfair in declaring her totally unqualified. Miers was president of the Dallas Bar Association and then the State Bar of Texas, an accomplished corporate lawyer, and Counsel to the President. Yes, there were a number of short-listed candidates with records much more impressive than that, but her stats are comparable to several lawyers whose first judicial job was on the Supreme Court. Nixon nominee Lewis Powell's most impressive stat was that he'd been American Bar Association president. Byron White earned his nomination by serving as Deputy Attorney General after using his celebrity (he'd been a pro football player) to help John F. Kennedy get elected. Pierce Butler was a former Minnesota state's attorney and respected private-practice lawyer (he counted railroad tycoon James J. Hill among his clients) whose main claim to fame when President Harding nominated him was not his resume but his criticisms of University of Minnesota law professors.

As a non-judge, and a non-academic, Miers is the stealthiest of stealth nominees. Liberal interest groups, who had stacks of talking points on over a dozen nominees, had little to say about Miers when her nomination was announced yesterday. Many conservatives are disappointed at best; quite a few jurists with strong originalist credentials were passed over. Clearly, the White House is more averse to a tough confirmation battle than anyone imagined; Senate Minority Leader Harry Reid reportedly urged the White House to consider her.

What do we know about what kind of justice Harriet Miers will make, if confirmed? Not much, though what we do know is somewhat encouraging.

We know that she's made reference, in a 1992 article for Texas Lawyer to "the right to bear arms" on a list of "precious liberties." "As far as I know," writes Second Amendment scholar Dave Kopel, "you have to go back to Louis Brandeis to find a Supreme Court nominee whose pre-nomination writing extolled the right of armed self-defense."

And we know that when she was active in the American Bar Association, she urged that organization to put its official stand in favor of legal abortion up to a vote among members. She donated to Texans for Life (then Texans United for Life) in 1989. She's a member of a conservative evangelical church. The signs point toward "pro-life," and a pro-lifer is unlikely to uphold Roe v. Wade.

The problem is that these are far from the only issues that will face the high court. What limits are there on executive power in wartime? To what extent do constitutional rights extend to non-Americans? Does the Commerce Clause grant the federal government unlimited power over practically any aspect of Americans' lives, as the Court's liberals believe? Or are there real limits to how much Washington can encroach on state and local territory? And what about stare decisis, the principle of leaving judicial precedent settled? Even Clarence Thomas and Antonin Scalia have different approaches there (Thomas is much more willing to reconsider precedent).

We don't know what Harriet Miers thinks about any of those questions; having done almost no work on constitutional law, it's very likely that not even she knows. Given ABA ethical standards that bar pronouncements on issues that judges can expect to rule on, it's unlikely that her confirmation hearings will tell us much. We won't get answers unless she's confirmed and joins the court, which seems likely. In the next term alone, there's a partial-birth abortion case and several federalism cases.

Remember that deep breath? It might not be a bad idea to hold it.

[Pondman88]

Jumping to conclusions and pre-judging is much more fun though....

[jla]

bump

Harriet will be just fine. And who knows, maybe a President in the not so distant future will even go so far as to nominate someone who isn't a jurist or a lawyer.

[veronica]

It's not a bad thing to be passionate too, though. We won the elections of 2000 and 2004 because of the passionate desire to win. We would not bother to participate in a forum unless we had strong views. Now we will watch this process unfold...

[dawn53]

After viewing the histrionics on FR these last few days...that would be a fun one to watch.

[SmartCitizen]

I find the pundits' language hilarious in defense of Miers: "Very modest," "a leader of the Bar Association," "highly qualified," "intelligent," blah blah blah. These are all MEANINGLESS and EMPTY platitudes. The only things that should matter to a conservative is what are her positions on the US Constitution and original intent? What about judges making law (such as finding a right to sodomy in the Constitution as in Lawrence case)? Does she believe that court rulings (e.g. Roe v. Wade) carry more weight than the Constitution? What is her guiding philosophy?

Her reported support for the Int'l Criminal Court, support for homosexual adoptions, women in combat, are not indicative of a conservative philosophy at all. I don't care what the conservo-pundit-talking-heads say. I can think for myself thank you very much.

[Moolah]

My problem is I don't think conservatives should have to guess what her stances are. Why not put a man/woman on the court whom we known holds conservative values? Isn't that a big reason we worked so hard to put Bush in the WH?

[nonliberal]

(he'd been a pro football player)

Mike Ditka for Supreme Court!

[paudio]

While I'm still not 100% comfortable with this nomination, I am prepared to give her the benefit of the doubt.

People seem to question her qualification by referring to the fact that she graduated from SMU, not from ivy league law school. Implicitly, it means that only graduates of big or ivy league school have the intellect to be supreme court justices. I beg to differ. It sounds like elitist mind to me. Condie Rice didn't graduate from Stanford or Yale. She graduated from the University of Denver. Yet, nobody seems to question her intellect. The difference is that Condie chooses to be in academic, while Miers chooses to practice law.

Similarly, I read somewhere statement that Miers is not even close to the 1,000 best lawyers. In fact, she's in the list of '100 most powerful lawyers' and '50 most powerful female lawyers' several times. When some people speak of Hillary, often this very same 'qualification' is brought up and offered as a proof.

Another complaint I see is that Bush has betrayed grassroots conservatives that worked hard for his re-election. Is that right? Yes, he didn't nominate one of the well-known conservative legal scholar. But do we know that the grassroots conservatives wanted a originalist legal scholar? I suspect many of them simply want to see that a judge that rules 'their way' on issues that are dear to them (the top one: abortion, rights to bear arm, gay marriage). And from what I read, Miers may be the one.

Unlike in Souter case, W knows Miers in person and has been working with her for long. So, it's not exactly the same comparison here.

So, perhaps we need to wait before passing judgment. I'm just wondering if answers in senate hearings will be enough to see the 'real Miers'. People can always tailor their answers in such situation.

Two things, however, I think work to her disadvantages: she's not that young any more, and the (justified) charge of crony ism.

[dawn53]

What do you mean guess?

We know she is strongly anti-abortion. When head of the ABA she tried to reverse their pro-choice stand. (IMHO, that took guts.)

We know she is a "born again" conservative Christian (can't imagine she won't get borked for that, but that's another story.)

We know George Bush has not picked one liberal among all his choices for the judiciary and we know that he knows her views better than he probably knew the views of the other judicial picks (because of a personal relationship over the years.)

We know she's pro 2nd Amendment.

Just because someone doesn't have judicial arguments to stand on doesn't mean we don't know where she stands. Her comments yesterday let us know she believes in the "word" of the Constitution.

I, personally, don't see the problem. We're always fussing that the Dems have a litmus test for the SCOTUS, seems we have a litmus test too, they must be judges already (which isn't a Constitutional requirement.)

[SirLinksalot]

<<<<
I read somewhere statement that Miers is not even close to the 1,000 best lawyers. In fact, she's in the list of '100 most powerful lawyers' and '50 most powerful female lawyers' several times.
>>>>>

Here are some additional information about Harriet Meiers for those who still want to think she is mediocre:

Awards and honors

Named as one of "100 Most Influential Lawyers in America" and one of the "50 Most Influential Women Lawyers" in America, from the National Law Journal

1997 Woman of the Year, from Today’s Dallas Woman

Women of Excellence Award, from Women’s Enterprise Magazine

Louise B. Raggio Award, from the Dallas Women Lawyers Association

Jurisprudence Award, from the Anti-Defamation League

Hon. Merrill Hartman Award, from the Legal Services of North Texas

Sarah T. Hughes Award, from the Women in the Law Section, State Bar of Texas

American Jewish Committee Human Relations Award

Justinian Award for Community Service, from the Dallas Bar Association

---

Listen folks, we've all been convinced in the past
by the powers that be that only Ivy League Law school
graduated lawyers who have been judges are qualified
and worthy to sit in the SCOTUS bench.

If this is so, then we should simply narrow down candidates to those who went to school at the top 10
law schools listed in the Peterson's Guide to Graduate Schools.

Remember this --- one of the greatest presidents in the 20th century graduated from a small college hardly anyone ever hear of -- Eureka College.

[Politicalities]

Another complaint I see is that Bush has betrayed grassroots conservatives that worked hard for his re-election. Is that right? Yes, he didn't nominate one of the well-known conservative legal scholar. But do we know that the grassroots conservatives wanted a originalist legal scholar?

He promised, damn him. He promised to nominate strict constructionists, he cited Scalia and Thomas as his models. That is one of only two reasons that libertarian-conservatives like myself supported him. It's the reason we ignored the profligate spending, it's the reason we swallowed our bile over the Medicare expansion... because we thought finally, finally here was the chance to rescue the Supreme Court.

Miers may well be a strict constructionist. I hope with all my heart that she is. But I wish I didn't have to hope or wonder.

[Politicalities]

Listen folks, we've all been convinced in the past by the powers that be that only Ivy League Law school graduated lawyers who have been judges are qualified and worthy to sit in the SCOTUS bench.

Maybe you've been convinced of that... I haven't given it a second though. I couldn't care less about where (or even if) a Supreme Court nominee graduated from college 40 years ago.

Of the hundreds of conservatives expressing grave reservations about Miers, I haven't heard anybody mention her alma mater as a major part of the reason... making your whole post one giant straw man.

[Diddle E. Squat]

Of the hundreds of conservatives expressing grave reservations about Miers, I haven't heard anybody mention her alma mater as a major part of the reason... making your whole post one giant straw man.

Then you aren't very attentive. I've read several cheap shots that referred to SMU as a 2nd or 3rd-rate law school.

[CatoRenasci]

We know she is a "born again" conservative Christian (can't imagine she won't get borked for that, but that's another story.)

It makes me very very nervous when some is recommended as adequately conservative because they are a "born again" or evangelical Christian.

I still have very unpleasant memories of 1976 and all my evangelical friends (quite conservative, and up until then Republicans) telling me their pastors has told them Jimmy Carter was a born-again Christian and 'one of us', and so they were voting for Carter.

[Politicalities]

Then you aren't very attentive. I've read several cheap shots that referred to SMU as a 2nd or 3rd-rate law school.

Well, I disagree with these people. As a matter of fact, I have no idea how good SMU is, but I really don't care. And of those stalwards in the conservative blogosphere who's expressed doubts about Roberts, I haven't heard her law school mentioned, and if it has been mentioned I'm sure it's far down the list of reservations.

[CatoRenasci]

Diddle is right there are a lot of people who have noted tne fact that SMU is at best a third tier law school: #52 in the USNews rankings which, while they're not accurate enough to say one schools is really #3 and the next school #4, are fairly reliable as an indicator of the tier of school. The first tier is the top 15 or so schools and the second tier is from about 15 to 30 or 35. Third tier are the schools somewhere between the low thirites to the sixties. SMU falls squarely within the lower half of the third tier.

[SirLinksalot]

<<<
And of those stalwards in the conservative blogosphere who's expressed doubts about Roberts, I haven't heard her law school mentioned,
>>>>>

I think you meant to say Miers instead of Roberts.

[Cicero]

LOL. You forgot to mention that she won the Sandra Day O'Connor Award in 2005.

[Politicalities]

I think you meant to say Miers instead of Roberts.

I did. It's early. I didn't get much sleep. Cut me some slack :)

The only reason I'm not furiously opposed to the Miers nomination is because of my opinion of the President and his staff. I know that they are very shrewed, very canny political operators. They had to be aware that nominating Miers over conservative favorites like Luttig or Alioto or Owen or Brown (although since reading his opinions I've been a big fan of Kozinski.) They also had to be aware that with the President's approval ratings sagging, pissing off the base right now is a dangerous move. Therefore they must have had a good reason.

I do not believe that the President has such a tin ear that he'd nominate somebody out of pure cronyism, that he'd toss away a precious Supreme Court seat just to reward a loyal supporter. He knows her better than we do, and obviously he sees something he likes in her. I'm gravely skeptical, I have serious misgivings, but I'm not ready to rend my clothing and gnash my teeth just yet.