Who, apparently, she calls her favorite Justice. Very telling. Burger was amiable but bland, not necessarily the brightest bulb on the Court, who despite personally believing in a strict interpretation of the Constitution was unable the move the Court in that direction and didn't even really try. History repeats?
I realize I keep hawking Alex Kozinski here, but it's instructive to compare him with Burger. Despite sitting on the Ninth Circuit, Kozinski isn't content to sit back and vote in the minority and sulk. Instead, he writes blistering dissents, full of the plainest of sense and logic. In one case, in fact, his dissent in a ruling that upheld a criminal conviction was so scathing and so straightforward, the government despite winning the appeal dropped the charges against the defendant. It's been called the Greatest Dissent. Now that's lawyering. That's the kind of man who can influence not only whatever Court he sits on, but public opinion as well. That's the kind of man we need on the Supreme Court. Not some amiable but bland nobody.
Then again, so would dozens of others who were overlooked during the vetting process.
In fact, I could enumerate dozens of them-off the top of my head-who would have been preferable to Ms. Miers.
If he were simply concerned about satisfying some implicit gender quota on the Court-which contradicts his administration's putative opposition to discriminatory preferential treatment in hiring and education-then President Bush could have nominated Janice Rogers-Brown.
And if that name was so unpalatable to the majority of the U.S. Senate-and I readily concede that her nomination could have provoked a Bork-like debacle-then President Bush could have just as easily plucked Edith Clement, or Edith Jones, or Alice Batchelder, or Karen Williams from their relative obscurity, at least outside of the legal field.
If he were insistent upon having a former Bush administration offical-either from his or his father's tenure as chief executive-in place, then he could have selected Viet Dienh, or Larry Thompson, or Richard Thornburgh, or John Yoo, or even (GASP!) Kenneth Starr.
If he were searching for someone outside of the appellate bench, or the incestuous political culture that predominates in this nation's capital, he could have nominated Mary Ann Glendon or Douglas Kmiec.
If he didn't want to draw from the cloistered world of academe, he could have chosen any number of more adept attorneys who haven't set foot in a lecture hall since graduating from law school.
If he wanted to make a bold pronouncement, or demonstrate that the Supreme Court was not merely the bailiwick of individuals steeped in the law for their entire academic and professional lives, he could have issued a extremely bold stroke and nominated Fouad Ajami.
Think about it.
The Chairman of Middle Eastern Studies at Johns Hopkins University.
A Muslim poet, whose primary realm of expertise is in Mideast/Arabic history and contemporary political affairs.
You can't get any more heterodox than that!
My point is that, yes Kozinski would have been a brilliant choice, but so would many, many others whose names do not begin with an H and end with an M.