PRESIDENT BUSH’S NOMINATION of Harriet Miers to the Supreme Court has divided the conservative movement. Initially, most conservatives, but not quite all, expressed disappointment with the nomination. Since then, paths have diverged. Some conservatives, having gone on record as wishing that Bush had chosen someone else, have now migrated back into the fold, pronounced Miers a qualified candidate, and defended her nomination as the president’s prerogative. Other conservatives have continued to ratchet up their attacks on Miers. Nearly every day produces yet another instance of Miers’s alleged incompetence, inexperience, or suspected liberal sympathies.
Some of the criticisms of Miers are trivial; others are unfair. A few are better grounded, but at the same time, could have serious implications if Republican senators accept them as legitimate grounds to oppose her nomination.
One trivial criticism of Miers is that she was suspended briefly from both the Texas and District of Columbia bars for non-payment of dues. In at least one instance, this was apparently due to clerical error on the part of her law firm, and it is, in any case, petty. There is nothing unusual about even the most distinguished lawyers forgetting to pay their bar dues and having their licenses suspended for a few days or weeks.
An unfair criticism is the attack that has been leveled against the questionnaire that Miers filled out for the Senate Judiciary Committee. Senators Leahy and Specter pronounced the questionnaire incomplete and inadequate. In truth, however, there is little to distinguish it from the answers to the same questionnaire that were supplied by John Roberts, especially in the key area of judicial philosophy.
Several conservative pundits launched a more specific criticism of Miers’s answers. They seized on this portion of Miers’s description of her experience with Constitutional issues, and proclaimed it a sign of incompetence:
Critics were quick to jump to the conclusion that Miers believed that the Due Process clause requires proportional representation of races, or perhaps parties, in city council contests. A moment’s reflection should have shown that this was a wholly implausible hypothesis. Another moment’s reflection would have revealed that Miers used the phrase “proportional representation” to refer to the fact that, when drawing new districts to satisfy the Voting Rights Act, the City Council had to make them of approximately equal size, so that the voters of each district would be represented proportionally–a perfectly logical, if not typical, use of the phrase.
It is easy to rebut the arguments against Miers that are trivial or unfair. But there remains a kernel of truth to the attacks on her as a Supreme Court nominee. While qualified, she lacks the sterling credentials of a John Roberts, or the solid conservative history, expressed in judicial, not just political terms, of a Michael McConnell, Michael Luttig, or Janice Rogers Brown. Ironically, it is the fair criticisms of Miers that, if pressed by Republican Senators to the point where her nomination is defeated, may change the judicial confirmation procedure for the worse.
REPUBLICANS HAVE LONG TAKEN the position that, because it is the president’s prerogative to select Supreme Court justices, any nominee who is qualified and doesn’t subscribe to an extreme judicial philosophy should be confirmed. Some Miers critics seem now to imply a new standard by mocking Miers as undistinguished, or by pointing out how much more qualified other potential nominees would have been. Such attacks carry a hazard. Until now, the judicial confirmation process has never been seen as one where senators can reject a qualified nominee on the ground that he or she isn’t the nominee the senators wanted, or the one the senators consider the best.
But many conservative critics of Harriet Miers come perilously close to urging that standard on Republican senators, in hopes that, if Miers is defeated, the president will go back to the candidate pool more favored by conservatives. But, once a handful of Republican senators have used such a rationale to vote against a Republican nominee, it requires little imagination to foresee how quickly the Democrats will use that precedent to justify their own opposition to essentially any Republican nominee, no matter how well-qualified or mainstream.
A second avenue of conservative attack on Miers, somewhat related to the first, likewise could change the assumptions that have heretofore underlain the confirmation process. The biggest concern of many on the right is that Miers may not be a “real” conservative. Many Republicans, stung by the examples of Souter, Stevens, and others, believe that only a nominee with a long paper trail, demonstrating a commitment to both political conservatism and to a judicial philosophy like “originalism,” can be counted on, long-term, to defend conservative principles on the Court.
From this perspective, Miers is deemed unacceptable because she has not spent years wrestling with, and writing about, Constitutional issues; nor has she articulated a clear–and clearly conservative–theory of Constitutional interpretation. But there is a simple reason for this: Miers has spent her life in private practice. A private practitioner does not devote her time to developing theories of Constitutional interpretation. If a paper trail firmly identifying a nominee as an “originalist,” or whatever, is a prerequisite for nomination, then we will never have anyone but judges and law professors as Supreme Court justices.
This would be, I think, a serious loss. Lawyers who have spent most of their careers in private practice can bring a valuable perspective to the Court. To cite just one example, it is desirable to have at least one justice on the Court who has, at least once in her life, tried a lawsuit.
Further, there is no Constitutional requirement that Supreme Court justices be lawyers. It might well be good to have a non-lawyer or two on the Court. Such justices may not bring much value to issues of, say, bankruptcy law; but the Constitution is a straightforward document, intended to be read and understood by men and women of ordinary intelligence and experience. There is no reason why expositing that document should be solely the province of lawyers. But if the views even of practicing lawyers are too unknown, and therefore too risky, for the Republicans, what hope can there be to confirm a non-lawyer?
Thus, if a group of conservative senators were to join with the Democrats to defeat Miers’s nomination, the immediate consequence might well be a better nominee for the O’Connor seat, but the long-term damage to the confirmation procedure could be considerable.
How likely is that to happen? Not likely. There is no reason to think that either President Bush or Harriet Miers has been cowed by criticism from the right, so in all probability Miers’s confirmation hearing will go forward in two weeks’ time. Much will depend, obviously, on how she performs. But if she performs competently, it is hard to imagine any Republican senators voting against her. That would be a hard vote to explain to the rank and file back home.
John Hinderaker is a contributing writer to THE DAILY STANDARD and a contributor to the blog Power Line.
