WHEN PRESIDENT BUSH ANNOUNCED THE nomination of Harriet Miers, he said she was the “one person [who] stood out as exceptionally well-suited” for the Supreme Court. Bush cited her character and “distinguished legal career.” What Bush didn’t mention was Miers’s assistance in helping him pick federal judges. He did that slightly more than 24 hours later in a press conference defending his suddenly embattled nominee. Miers, he said, was “a part of the process that selected John Roberts.” And because of her work on the Roberts nomination, “she knows the kind of judge I’m looking for,” meaning one who will interpret the law “strictly” and not “try to supplant the legislative process.” He added that Miers “shares that philosophy.”
This was Bush’s answer to conservatives who wanted proof that Miers was a judicial conservative. Miers’s advocates have followed the president’s lead, emphasizing her role in helping the president choose not only Roberts but also other judges. During the daily briefing on October 17, White House press secretary Scott McClellan said Bush has “nominated more than 200 people to the bench. And Harriet Miers has been very involved in that process.” Therefore, “she knows the type of person that the president is looking for.” Left unstated was McClellan’s–and Bush’s–key point: that Miers herself is that type.
True, Miers has been “involved” in the president’s judicial selection. Her involvement, however, extends to only a small fraction of the president’s 200-plus choices. Still, her work in this process–over a span of 27 months–surely was sufficient for her to know, to use Bush’s general terms, “the kind of judge I’m looking for.” And it’s hard to imagine, given her widely reported loyalty to Bush, that she would fail to “share” his views, to some degree, on judging. Still, there is much that is not known about her involvement in Bush’s judge-picking. And it is almost certainly not going to be known. So her work as a judge-picker is not a useful indicator of what approach to judging she would take as an associate justice.
A lawyer from Dallas and a confidant of Bush’s since the early 1990s, Miers came to work in the White House in January 2001. She served as staff secretary until July 2003, when she succeeded Josh Bolten as deputy chief of staff for policy. As part of her new position, she attended (as Bolten had) the White House Judicial Selection Committee meetings, which were convened weekly by White House Counsel Alberto Gonzales. When Gonzales became attorney general in February of this year, Bush named Miers to take his place.
The committee is a key part of the judge-picking process, which Gonzales instituted during the first weeks of the administration. Interviews with a half-dozen lawyers who have been a part of the process confirm that it remains today essentially what it was in 2001, and that the White House counsel–first Gonzales, then Miers–has been the one in charge. The process was designed to identify candidates for vacancies and vet their legal qualifications, judicial philosophy, and confirmability. The counsel’s office has done much of the vetting, and the committee (including several associate counsels and a Justice Department lawyer, as well as Andrew Card, Karl Rove, and the deputy chief of staff for policy) functions as a court of sorts, deciding which candidates to interview and ultimately which to recommend to Bush.
Relying on this process, Bush has now appointed 172 judges to the district (trial) courts and 41 judges to the circuit courts, whose importance derives from the fact that very few cases rise above them to the Supreme Court. While Miers was deputy chief of staff for policy–and thus on the committee–Bush nominated 37 district and 19 circuit judges (according to the Justice Department). The work on at least 11 of those nominations (8 district, 3 circuit) had already been done by the time Miers became deputy chief of staff. During her time as White House Counsel, the president has made 12 district and just 1 circuit court selection (again, according to the Justice Department). Using different processes, Bush has chosen Roberts and now Miers for the Supreme Court.
The above two paragraphs describe the process Miers took part in and its actual results. Still, there is much more that needs to be known about Miers’s involvement if you want to discern how she might interpret and apply the law. To put it otherwise, if it were possible to know with some specificity about Miers’s particular role in Bush’s judicial selection, you might be able to see whether the judicial philosophy she shares with the president has gained much definition or remains at the level of platitude, however appealing. Suppose you knew the questions she asked candidates, or the views (if any) she stated in those committee meetings. Or suppose you’d read whatever she might have written pertaining to judicial selection. Then you might find out.
But such information, involving as it does presidential decision-making of the highest order, is not given out, either to senators obligated to advise and consent or, through aides or even former aides, duly respectful of the office, to an inquiring press. “I’ll eat my hat,” says one former administration lawyer who was involved in the process, if materials involving judicial selection “are ever given up.”
The situation is such that supporters of Miers who are willing to speak about her role in judicial selection do so only in general terms. For example, David Leitch, who served as deputy White House counsel from late 2002 until March of this year, told me that while Miers was deputy chief of staff for policy, she was “a full participant” in the weekly judicial selection meetings. “She engaged in discussion and offered her thoughts and comments about people and strategy.”
Of course, on background–that is, not for attribution–people tend to be a little more specific, but only a little. Thus, one individual who asked me to identify him (or her) as “a source involved in the process” said that, as White House counsel, Miers has insisted on the importance of “neutral principles in judicial interpretation,” and in one instance she cautioned against inferring from a prosecutor’s tough-on-crime reputation “an overarching judicial philosophy” or an understanding of “the proper role of the courts.” This raises the question, of course, of what her own philosophy, and her own understanding, might be. Miers may be a better scout of judges than judge material herself.
Miers wins praise from lawyers in a position to know about her work on the Roberts nomination. “She was instrumental in pushing his candidacy,” says one. “She was in charge of that process,” says another. “She sat through all the murder boards,” says yet another, a close friend of Miers’s. Another lawyer who helped with those boards says, “She was there for the whole thing,” though he adds, “I don’t recall her asking questions.”
Not incidentally, a lawyer who advised on the Roberts nomination says that Miers and her team vetted that choice so thoroughly that “the roll-out was flawless.” Her nomination, he continues, was not well vetted, hence its accumulating problems, one of which is the worry among conservatives about the depth of her judicial philosophy. “When it came time to roll out Harriet Miers, there was no Harriet Miers.” That invites a question: Would another Harriet Miers be able to sell this Miers?
In responding to a Senate Judiciary Committee questionnaire last week, Miers chose these words to describe her work in the judicial-selection process: “A critical role of my current job is to assist in the formulation of recommendations for individuals to fill judicial vacancies. I also participated in such activities as Deputy Chief of Staff. My work in this area confirmed my view that judges must limit their role to interpreting and applying the law, leaving policymaking and legislating to others.”
While senators in both parties are unlikely to learn more about Miers’s work on “the formulation of recommendations” for judicial nominations, that does not mean they will end their inquiry into her judicial philosophy. Whether there is any more to learn about Harriet Miers’s judicial philosophy is a question that the hearings, advertised to begin on November 7, seem destined to answer.
Terry Eastland is publisher of The Weekly Standard.
