MATTHEW CAAVANAUGH / Getty Images
Supreme Court nominee Harriet Miers listened to President Bush in the Oval Office.
Posted on 10/09/2005 5:54:57 AM PDT by billorites
She once told me that the president was the most brilliant man she had ever met."
So reports conservative writer and former Bush speechwriter David Frum, in National Review Online. Unless White House Counsel Harriet Miers explains that she was joking or Frum was hallucinating, this alone may cast enough doubt on her judgment to warrant a "no" vote on her Supreme Court nomination.
But before detailing Miers' liabilities, I should acknowledge her virtues. She is an impressive person with an admirable record of devotion to duty, self-effacing industriousness, quiet competence, public service, and a kind and caring heart.
Miers did very well at law school. She has been a pioneering career woman – the first hired by a big Texas law firm; the first to become president of the firm; the first to head the Dallas and then the Texas state bar associations, where she was known for reaching out to women and minorities; a successful corporate litigator; an energetic supporter of community services, including legal assistance for poor people; a member of the Dallas City Council; the head of the Texas Lottery Commission; a high-level White House official; a loving caregiver for her elderly mother; and more.
Moreover, on the current court, Miers' Texas roots and lack of prior judicial service may be assets. Her background as a litigator trained at Southern Methodist University's law school would bring some diversity of experience to a court already staffed by eight former federal appellate judges, six of whom trained at Harvard Law School. And Chief Justices William Rehnquist, Earl Warren and John Marshall and Justices Lewis Powell and Byron White had not previously been judges either.
But the Supreme Court is the big leagues. The issues it decides present excruciatingly difficult challenges even for people with world class legal minds, political talents and judgment. By that very demanding standard, nothing in Miers' record shows her to be more than a minimally qualified presidential crony. Indeed, she may be the least-distinguished Supreme Court nominee since G. Harrold Carswell. The Senate rejected him in 1970 despite Sen. Roman Hruska's plea: "Mediocre judges and people and lawyers – are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises, Cardozos, and Frankfurters, and stuff like that there."
Miers is no mediocre. But she is no legal giant, either. Her public statements have been uniformly platitudinous. Some avid Bush supporters who have met with her have come away underwhelmed by her acuity and Milquetoast personality, as well as unsure of her convictions.
When asked whether Miers has what it takes to be a good justice, a former bar association colleague who personally likes her responds: "I don't know how anyone could tell. She doesn't say that much."
To be sure, while most of the greatest justices have been people of intellectual brilliance, that is not an essential trait. Some brilliant justices, such as William Douglas and Abe Fortas (who also happened to be an LBJ crony), have been egomaniacal loose cannons. I would gladly settle for the quiet wisdom of a Lewis Powell, which was rooted more in pragmatic common sense than in intellectual dazzle.
MATTHEW CAAVANAUGH / Getty Images
Supreme Court nominee Harriet Miers listened to President Bush in the Oval Office.
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But although Bush chose Miers because he thinks he knows how she would vote, the rest of us are largely in the dark. And because we are likely to remain in the dark, a presidential crony of less-than-outstanding abilities is a doubly dubious nominee.
In an era when political polarization militates against the choice of new justices with known views, and when technology and social change promise to present the court in the coming years with issues that we cannot now foresee, we are entitled to demand the best and brightest.
And in an era when the court's most vital duty may be to provide an independent check upon presidential claims of near-dictatorial powers in the war against terrorism – claims that Miers has helped craft – we are entitled to demand nominees who will be unquestionably and entirely independent of the president.
Chief Justice John Roberts passed these tests with flying colors. By comparison, Harriet Miers is an apparatchik of modest ability whose work as Bush's personal lawyer ranged from dealing with a title dispute involving a fishing cabin to handling questions during political campaigns about whether he received favorable treatment to get into the Texas Air National Guard (and avoid the draft) during the Vietnam War.
Especially troubling is her legendary loyalty to a man whose penchant for rewarding slavish devotion is reminiscent of King Lear's. In a White House "that hero worshipped the president," writes David Frum, "Miers was distinguished by the intensity of her zeal."
Imagine a Justice Miers facing, say, a new variation on Bush's claims of unchecked power to lock up suspected "enemies" without due process, or a big abortion case. Might she shy away from casting votes that could cause Bush political embarrassment? Or even ask herself, "What would the president want me to do?"
When Bush says, "I know her well enough to be able to say that she – shares my philosophy," I wonder: What does Bush know that we don't know? And what sweet nothings are he and his people whispering in the ears of anti-abortion activists like evangelical conservative leader James Dobson, who has warmly endorsed Miers while explaining that "some of what I know I am not at liberty to talk about"?
When Bush confidently adds that Miers "will have that same philosophy 20 years from now," I think of what Justice Felix Frankfurter said when asked whether a justice ever changes his mind: "If he is any good, he does." And of what Justice Robert Jackson (quoting a British law lord) said in a 1950 concurrence disavowing a position he had taken 10 years earlier as attorney general: "I can only say that I am amazed that a man of my intelligence should have been guilty of such an opinion."
And when the president asks us to trust his judgment because "I know the character of the person," the mind reels, with flashbacks to Bushisms about Vladimir Putin ("I was able to get a sense of his soul," and "I wouldn't have invited him to my ranch if I didn't trust him"); former Federal Emergency Management Agency Director Michael Brown ("Brownie, you're doing a heck of a job"); and post-invasion Iraq ("We've found the weapons of mass destruction").
The president's confidence in Miers gives me no confidence. And the bumper-sticker slogans that sum up Bush's judicial philosophy – "strictly interpret the laws" and don't "legislate from the bench" – will not be of much help when and if Miers needs to decide vexing questions such as one argued before the justices last week: whether the federal Controlled Substances Act trumps Oregon's Death With Dignity Act, which allows physicians to prescribe lethal drug doses at the request of terminally ill patients.
A few presidential cronies have, of course, turned out to be notable justices. They include Robert Jackson, Hugo Black and Felix Frankfurter, all appointed by President Franklin Roosevelt. But each of them had been a legal or political giant of independent stature – as attorney general, U.S. senator, and Harvard Law School dean, respectively – before taking the bench. Miers seems more on the model of Sherman Minton and Harold Burton, both Truman cronies who rank quite low in the pantheon of justices. Except that Minton and Burton had been U.S. senators.
The core of the Senate's "advice and consent" role has not been to exercise ideological vetoes, except of nominees at odds with mainstream American opinion. It has been to provide a "check upon a spirit of favoritism in the president," as Alexander Hamilton wrote in Federalist 76, while preventing him from rewarding flunkies with Supreme Court seats where they will be "the obsequious instruments of his pleasure."
The Senate should reject any Supreme Court nominee – especially one close to the president – who has not proven herself to have extraordinary ability and independence of judgment unskewed by loyalty.
The woman who once called Bush the most brilliant man she had ever met has not met this burden of proof during her first 60 years. Unless she can do so in the next few weeks, she should be treated with respect, praised for her character and accomplishments, and voted down.
Who gives a squat how she comes off in conversation. What counts is what she's done.
Is she a crony or another O'Conner? Funny how this debate has taken shape.
"What counts is what she's done."
No. What counts is what she will do.
"If then ye have judgments of things pertaining to this life, set them to judge who are least esteemed in the church. " 1Cor. 6:4
Seems to me everybody's criticism of Harriet Miers is that she's "least esteemed", the very thing that may qualify her the most.
False. How she "comes off in conversation" affects her persuasiveness to other Justices in conference, for one thing. And she comes off like a lady who has just a little bit too much trouble figuring things out.
Bush give up someone younger and a sure thing.
Now ... If the Senate hearings will only do the same, we are in business.
I really doubt that the Senate will poll FR and decide the fate of Harriet Miers base on that poll, so there is no need for FR to get all lathered up over this, unless os course, we wish to.
Yo ... pass the soap, you moron!
I didn't know personality was that important?
Thomas isn't much of a talker either.
So you've met with her? When did this happen?
BTW, Mr. Taylor is wrong when he calls Mr. Douglas a "William Douglas." That guy was a nut, and his opinions substandard.
Does anyone actually have a bonafide script of an interview with her? Not this "Warren who?" which I haven't seen anything but hearsay about?
It's ludicrous to think that a lawyer who has done as well as she has, found herself tongue tied in court.
NO, the question should be; "Is the president's word that Ms. Miers is his RIGHT choice for the the court?"
AND, to me; a lifelong senior republican, his character - in all (or at least most) matters since becoming our president - gives me comfort that Ms. Miers is something more than just cronyism!
I'll go with Barry "Mr. Conservative" Goldwater on this particular issue.
Inverse discrimination is wrong.
It's always wrong, but especially when it is being used to determine who shall dispense justice at the highest court in the land.
Thomas doesn't talk much from the bench. But even though I was young at the time, I read some of his DC Court of Appeals decisions and some of his articles and interviews before his 1991 nomination, and his intelligence was quite evident. I've also seen Justice Thomas on C-Span speak ably and intelligently in extemporaneous Q and A sessions.
Thomas just doesn't like to preen and ask a question at oral argument, when the answer is in the written briefs or covered by another Justice's question.
Maybe I'm wrong, and Miers will speak like Roberts in a skirt at the conformation hearings. I sure hope so.
I met her on C-Span. Not a personal meeting, thus my impression is no guaranty. But I didn't see brilliance shining though. Look for yourself (the 1st 2 clips under Davids Frum's picture):
http://12.170.145.150/homepage.asp?Cat=Current_Event&Code=SCourt&ShowVidNum=40&Rot_Cat_CD=SCourt&Rot_HT=&Rot_WD=&ShowVidDays=365&ShowVidDesc=&ArchiveDays=365
Goliath: 0 David : 1
If we ever needed a 'David' on the bench, it is now.
Does anybody else find it amusing that the most mediocre minds and writers are criticizing the President and his decisions as though they were legends in everybody else's minds -- just because they are flattered to be asked to sign their names to hit pieces authored by MoveOn.org?
Practically every two-bit hack seems to have been conned into thinking they are signing an original piece that every other liberal hack has also claimed they wrote (and gotten paid for). Has one noticed that all the criticism against Miers runs along the same lines? The President is not the most brillaint person in the world -- but that writer is, and totally qualified to diss everybody else.
The characteristic trait of people who are "nobodies" is that they think "somebodies" go around kicking "nobodies" like themselves -- as proof of how powerful and important they are.
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