Miers nomination a mistake

Scott Stephanou

The nomination of Harriet Miers to the U.S. Supreme Court could turn out to be one of the worst choices of George W. Bush’s presidency. Critics on the right, and there are plenty of them, are assailing Bush for not picking someone with unambiguous conservative credentials. William Kristol, editor of the Weekly Standard, said he was “disappointed, depressed, and demoralized” by Bush’s selection. Then there are critics from all over the spectrum who are criticizing Bush on charges of cronyism.

With all this criticism, one has to ask the question: why did Mr. Bush select this woman? There are two possibilities. One is that Miers is a stealth conservative with no out-of-the-mainstream record that Democrats can use to sink her nomination. The other reason is that Mr. Bush values loyalty and decided to pick someone with whom he has a close relationship with. Ultimately, it is more about Bush’s personal relationship with Miers.

Taking a look at Ms. Miers credentials, it is difficult to see what makes her qualified to sit on the U.S. Supreme Court. She has never been a judge, which in itself is not a disqualifier. There have been a number of Supreme Court Justices who were never judges before their appointments. The late Chief Justice William Rehnquist was the last justice to be appointed with no judicial experience. However Rehnquist served as Assistant Attorney General along with clerking for Supreme Court Justice Robert Jackson. Jackson was another justice who had no prior judicial experience. However, he served as U.S. Solicitor General and Attorney General during the FDR administration. Miers has been a successful corporate lawyer, she was head of the Texas state Bar Association, but she has almost no experience in constitutional law. Her standout constitutional law case was a 12th Amendment case (which says that a President and a Vice President have to be from different states) that she argued on behalf of none other than George W. Bush as his personal lawyer.

So far, Mr. Bush’s most compelling reason for her to be confirmed has been “trust me.” More will come out about Ms. Miers during the confirmation hearings, but for now, just trusting the president is inadequate.

There have also been some pretty disturbing ways that conservatives have been trying to calm wary members of their own ranks. Conservative supporters of Miers have been touting the fact that she is a devout evangelical Christian. Former Bush advisor and conservative blogger Marvin Olasky wrote that Miers “totally committed her life to Jesus” and pointed out that she has tithed 15% of her income to her church. It says a lot about the social conservative movement in this country that religious devotion is such an important qualification to being a justice.

I think that eventually, Ms. Miers will be confirmed. Enough Democrats will vote for her to cancel out Republican defectors. But confirmation is still no guarantee. An article in last Friday’s Washington Post by Dan Balz pointed out that whenever there have been disagreements between libertarians and fiscal conservatives, “reshaping the judiciary bound the movement together.” Newsweek’s Howard Fineman said on MSNBC that the Miers nomination is “like a brick wall without mortars. If you pull one brick out, the whole thing could collapse.” Senators Trent Lott and Sam Brownback have both said they haven’t ruled out voting against Miers.

I think that President Bush trusts Harriet Miers to be a reliable conservative on the bench. Bush said that, “Twenty years from now, she will be the same person with the same judicial philosophy.” But it is understandable that conservatives feel betrayed when Bush passed over candidates with public conservative records such as Judge J. Michael Luttig of the U.S. Court of Appeals for the 4th Circuit, Judge Michael W. McConnell of the 10th Circuit and Judge Priscilla R. Owen of the 5th Circuit. Senator Trent Lott said, “Is she the most qualified person? Clearly the answer to that is ‘no.'”

The bottom line is that Ms. Miers never would have been appointed had she not been the personal lawyer of George W. Bush. This leaves, at the very least, the appearance of putting a crony on the highest court of the land.