A Stitch in Haste

I think the nomination of Harriet Miers is a disastrous decision, in terms of both leadership and politics.

The single biggest concern is of course that Miers has never even been a trial judge, let alone an appellate judge. It's not clear whether she's even done any significant appellate litigation, especially constitutional litigation, as a private attorney.

--As leadership, this is totally unsatisfactory. There were at least a dozen viable candidates with appellate court experience. Perhaps exceptions are warranted for truly outstanding candidates, but that is not the case here. Miers may be many things, but she is not unique.

--As politics, this is just plain stupid. Every one of the 44 Democrats in the Senate (plus independent Jim Jeffords) now has an easy excuse to vote "no" — "She's not even a judge, what more reason do I need?" It also invites the "cronyism" card, which, after Michael Brown, President Bush hardly needs.

--Remember the Gang of 14 and their "no filibuster" compromise over circuit judge appointments? That agreement included an exemption (i.e., allowing a filibuster) for "extraordinary circumstances." How much spin do Democrats need to assert that nominating a non-judge partisan political staffmember to the Supreme Court constitutes an "extraordinary circumstance"?

In short, a very foolish choice. I would not vote to confirm her under any circumstances — and I am no partisan liberal Democrat. And I think this battle is going to get very ugly.

UPDATE: The blog purple america explains what it does -- and does not -- mean to be the head of a state bar association, especially the Texas State Bar association.

And yes I'm aware that William Rehnquist was never a judge -- nowhere did I say that a judicial background was a necessary condition for confirmation to the Supreme Court. Calling those of us in the "she's never been a judge" crowd "stupid dolts" makes you, well, a stupid dolt.

What I am saying is that the burden of persuasion is now on Miers' apologists to explain why she is the intellectual equalivalent of the late Chief Justice (or, alternatively, any of the current Justices).

What would Alexander Hamilton do?

Professor Randy Barnett: (WSJ - $)

Federalist No. 76: To what purpose then require the co-operation of the Senate? I answer, that the necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity...

He would be both ashamed and afraid to bring forward, for the most distinguished or lucrative stations, candidates who had no other merit than that of coming from the same State to which he particularly belonged, or of being in some way or other personally allied to him, or of possessing the necessary insignificance and pliancy to render them the obsequious instruments of his pleasure.

Professor Douglas Kmiec:

The president actually believes that, as Alexander Hamilton put it, the Supreme Court is intended to be "the least dangerous" branch of government. Hamilton himself drew this inference from Montesquieu, who taught the first Americans everything they knew about the separation of powers. And the most important thing Montesquieu taught the Founders is that the political or policymaking branches are to remain separate from the judiciary if tyranny is to be avoided. Indeed, Montesquieu instructed, the judiciary should be "next to nothing."

Guess which invocation of Hamilton I side with.

Kmiec, a former Ronald Reagan and George H.W. Bush attorney, is trying to pull the same sleight-of-hand that all the other Miers apologists are scrambling to carve into talking points: that being "nice" or "loyal" or even a "good private attorney" is somehow interchangeable with being qualified.

Yes Miers seems like a perfectly nice person with a perfectly nice résumé, one that would certainly land her any variety of senior legal positions in the private or even the public sector. Perhaps she is even qualified for a circuit court appointment where she could begin to gain judicial and jurisprudential experience.

But what on earth does that have to do with the Supreme Court?

I am still waiting for someone — anyone — to point to a single credential in Miers' background that suggests she has any competence whatsoever to do what the Supreme Court does: apply complicated principles of constitutional law to complicated fact patterns?

No tiptoeing around the issue. Open Thread: Which selling point has anything to do with the most complex constitutional law questions of our time? Fully explain you answer!

--Graduate of a second-rate law school. (Has her GPA or class rank been disclosed? Even her grade in Con Law would be helpful.)

--One year filling an uncontested, at-large seat on the Dallas City Council.

--Head of the Texas Lottery Commission.

--Survivor (conqueror?) of the Texas "old boy network" of lawyers.

--Head of a state bar association.

--Head of a large private law firm.

--Active civic volunteer.

--Political insider notorious for loyalty and "hard work."

I ask again: how does a single one of those otherwise praiseworthy credentials relate in any way to what the Supreme Court actually does (i.e, complex constitutional litigation)?

I actually do concur with Miers' supporters to some extent: She is not stupid. She is not weak. She is not ambivalent.

And she is not qualified to sit on the Supreme Court.

If you don't believe me, then just ask Alexander Hamilton.

Turns out I'm not a lone voice in the wilderness anymore in my rather basic protestation that Harriet Miers is simply not qualified to serve on the Supreme Court:

The wisdom of presumptive opposition to Miers's confirmation flows from the fact that constitutional reasoning is a talent -- a skill acquired, as intellectual skills are, by years of practice sustained by intense interest. It is not usually acquired in the normal course of even a fine lawyer's career. The burden is on Miers to demonstrate such talents, and on senators to compel such a demonstration or reject the nomination.
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The crowning absurdity of the president's wallowing in such nonsense is the obvious assumption that the Supreme Court is, like a legislature, an institution of representation. This from a president who, introducing Miers, deplored judges who "legislate from the bench."

Indeed. It is astounding how some Miers apologists point to her "not thrilling, but nice" résumé and chant, without elaboration, that she's somehow qualified. I repeat my challenge from a previous post: point to any one item in her career and fully explain how it relates to constitutional law at its most complicated and most important levels.

Some have suggested that her background as the head of a private law firm is helpful, that the Court needs more "corporate" representation. Nonsense -- if that mattered, then why not nominate Bill Gates? (By the way, law firms are not corporations -- go figure.)

Some have suggested that a diversity of backgrounds improves the functioning of the Court. Nonsense -- if that were the case, then the best candidate for the Court would be a convicted murderer -- who would most likely have had significantly more experience with the Fourth, Fifth, Sixth and Eighth Amendments than Miers has.

Why are Miers' apologists so willing to ignore both the distinction between a lawyer and a constitutional scholar and the need for the latter on the Supreme Court rather than the former?

Think of it this way -- Harriet Miers would probably make a fine law professor -- but not a fine constitutional law professor. Who can claim with a straight face that "Supreme Court Justice" is a less important and less solemn position to fill responsibly than "constitutional law professor"?

She is a fine lawyer. And she is patently unqualified for the Supreme Court. The two are not mutually exclusive. The sooner the Miers apologists acknowledge this, the sooner the President can acknowledge his error and move on.

Federal Reserve Chairman Alan Greenspan will retire when his current term expires on January 31, 2006. So President Bush will have yet another important nomination to send to the Senate:

The post, sometimes called the second most powerful in the world, has as much, if not more, impact on the daily lives of Americans. As the Fed sets short-term interest rates and in effect controls the nation's money supply, its policies have a direct link to economic growth, the pace of job creation and the rate of inflation.
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Like a Supreme Court justice, the Fed chairman has to serve above the political fray and make decisions on sound principles that won't unnerve investors or monetary markets.

And, like the new "Roberts court," which will tackle an array of highly charged social issues, the next leader of the Federal Reserve will inherit an economic picture with major issues of its own — massive federal debt and rising energy prices at the top of the list.

So what if the president were to "pull a Miers" and nominate his family's long-time personal banker?

Suppose this hypothetical nominee were a woman, an underrepresented minority at the Federal Reserve. She has a basic banking education from a mediocre college and business school. She is generally considered by everyone who knows her as a competent, perhaps even outstanding private banker.

She admittedly has quite an impressive résumé as a private banker and as a woman: She "broke through barriers" and "penetrated the old boy network" of Texas banking, becoming co-CEO of a major Houston bank, the first female president of the Houston Bankers Association and later the first female president of the Texas Bankers Association. She has participated in numerous civic groups and charitable organizations. She even served one term (having run unopposed) as an at-large representative on the Houston City Council.

Oh, and she ran the Texas Horse Racing Commission.

She has been a close personal financial adviser to the Bush family generally and George W. Bush personally for many years.

She has, however, no experience, none whatsoever, as a central banker or financial regulator. Her views on monetary policy, fiscal policy, international trade policy, Social Security reform and banking regulation are known only to the president, who urges us to "trust him." "She shares my monetary policy philosophy," President Bush assures us.

Other defenders of her nomination insist that experience as a central banker is not a requirement for Fed Chairman: "The Federal Reserve is already full of professional financial regulators — it would be refreshing to have an outsider at the Fed," we are told.

Sound ridiculous?

How is the Miers nomination any less ridiculous?

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Meanwhile, the "Gang of 14" who brokered the "no filibuster, no nuclear option" agreement for the president's judicial nominees seems to have already decided that nominating a patently unqualified person to the Supreme Court is not an "extraordinary circumstance" that would void the agreement. We were originally told that any Supreme Court opening could be viewed as an "extraordinary circumstance" falling outside the compromise.

Which merely shows that the agreement was never really a grand exercise in solemn, principles-based mediation at all, but simply business-as-usual petty politics. Is anyone really surprised? (Hat tip to California Yankee.)

The White House, in an effort to deflect the undeflectable criticism of Harriet Miers' nomination to the Supreme Court, staged a bizarre photo op with several former justices of the Texas Supreme Court to express their support of Miers' nomination.

Of course, the fact that Miers never served on the Texas Supreme Court is conveniently omitted. It's not even clear whether she ever even argued before the Texas Supreme Court.

Details, details.

Here's the President during the photo op:

She is smart, she is capable, she is a pioneer. She's been consistently ranked as one of the top 50 women lawyers in the United States. She has been a leader in the legal profession. She's impressed these folks. They know her well.

Translation:

She is not a constitutional law expert, she is not a constitutional law expert, she is not a constitutional law expert. She's been consistently ranked as one of the top 50 women not-a-constitutional-law-experts in the United States. She has been a leader in the not-a-constitutional-law-expert profession. She's impressed these folks, but not for being a constitutional law expert. They know her well, especially the fact that she's not a constitutional law expert.

Oh, and William Rehnquist was never a judge either. Neither was John Marshall. So there.

If you need a detailed explanation of how White House Counsel Harriet Miers is not a constitutional law expert and is therefore patently unqualified for the Supreme Court, then simply peruse this detailed SCOTUSblog post.

Highlight:

Miers also made a broad claim to having handled constitutional questions as White House Counsel to President Bush. But, she gave no details, even though the Committee had asked her to "describe in detail the constitutional issue you dealt with, the context in which you dealt with it, and the substance of any positions you took related to that issue." She also failed to provide detailed support for a claim that, as a private lawyer, she handled "many cases involving issues of personal jurisdiction under the United States Constitution" and gave no details on her handling of "many First Amendment issues" while representing "a media client for many years."

Does anyone remember the movie Telling Lies in America in which Brad Renfro's character Karchy Jonas would, whenever he was asked "Have you ever done...?" would inevitably (and falsely) reply "Sure, lots of times..."

That's where we're at now with Miers -- she's the Karchy Jonas nominee.

I stand my ground -- Miers is not qualified even to serve as Solicitor General, let alone Supreme Court Justice.

For the first time, I genuinely believe that Harriet Miers will not be confirmed to the Supreme Court.

For the first time, the only issue that truly matters (other than any ethics concerns, which so far have not emerged) has crowded out all the gobbledygook about Miers' "stellar" résumé as a "trailblazer" and "glass ceiling penetrator."

For the first time, everyone (except the President, of course) is fessing up and acknowledging what some of us have said from the beginning.

Harriet Miers has zero significant constitutional law experience.

Senate Judiciary Committee leaders Arlen Specter and Pat Leahy have peeled back the layers of veneer from the Miers nomination and found cardboard where hardwood should be.

And they are not pleased:

Barely concealing their irritation during a 35-minute news conference at the Capitol, Chairman Arlen Specter (R-Pa.) and ranking Democrat Patrick J. Leahy (Vt.) called the lobbying on Miers's behalf "chaotic," and said the answers she provided Monday to a lengthy questionnaire were inadequate. "The comments I have heard range from incomplete to insulting," Leahy said.

They sent Miers a three-page letter asking for more detailed responses in several areas, and Specter said he has asked the Bush administration for more documents concerning her work as White House counsel. Specter said Miers must provide "amplification on many, many of the items" included in the first questionnaire.

Here is the letter's smoking gun:

In answer to question 17, you explained that as Counsel to the President you are regularly faced with issues involving constitutional questions, but gave no specifics about the issues themselves, or the work that you personally did. Please provide the Committee with details concerning the specific matters you handled, the constitutional issues presented in those matters, and the positions you took related to those issues.

The reason I now firmly believe Miers will not be confirmed is not that she will refuse to answer that question, but because she has no answer to give. There is no there there.

The next step is of course the confirmation hearings themselves (assuming Miers does not withdraw her nomination before then). If the senators on the Judiciary Committee throw her nothing but softball questions about her résumé, background and supposed "judicial philosophy," then she might squeak by. But if they do their job and turn the hearings into what they now must become — a multiday oral examination on constitutional law — then Miers (who would undoubtedly flunk such an examination) is doomed.

More thoughts at SCOTUSblog, PurpleScarf.

POST SCRIPT: Believe it or not, I can actually cut Miers some slack about the late-dues suspension of her law licenses in D.C. and Texas. Stuff happens. Her mislabeling of "one-person, one vote" Fourteenth Amendment jurisprudence as the "proportional representation requirement" is somewhat more troubling, especially considering that there's no such thing as a "proportional representation requirement" in either the Constitution or the Voting Rights Act, which she cites. Not a good start.

(Cross-posted at N.Z. Bear.)

Here is a sampling of the kind of questions I would like to see Harriet Miers asked during her confirmation hearings:

--In the 1990s, as president-elect and president of the State Bar of Texas, you advocated "affirmative action" policies including racial set asides in private law practices. Given the Supreme Court's recent holdings in Grutter v. Bolinger, No. 02-241, 539 U.S. 244 (2003) and Gratz v. Bollinger, No. 02-516, 539 U.S. 244 (2003), do you think such set asides would be constitutional today? Also, please remind us how the facts differed between Gratz and Grutter and how those different facts led the Court to reach different decisions.

--A key premise in current Supreme Court affirmative action jurisprudence is that achieving racial diversity in higher education, including law schools, is a "compelling state interest." Do you consider achieving racial diversity in the legal community generally, and private law practices specifically, to be a "compelling state interest" in the constitutional sense of that term?

--Is the State Bar of Texas a "state actor"? Why or why not?

--Justice O'Connor wrote in Bollinger that "The Court expects that 25 years from now, the use of racial preferences will no longer be necessary to further the interest approved today." Given that you might be on the Court in 2028, would you consider Bollinger as having "expired" or at least subject to less deference under the doctrine of stare decisis at that time?

--Gratz v. Bollinger and Grutter v. Bollinger drew heavily from the famous educational affirmative action case University of California Regents v. Bakke, 438 U.S. 265 (1978). Please remind us what the facts of that case were and what the Court held.

--You have been described as a "pathbreaker" for women in the legal profession. As president of the State Bar of Texas, when you referred to "minorities," did you mean women as well as racial minorities? Would you include women as "minorities" today, either in the legal profession or in society generally? And can you remind us, precisely, how current equal protection analysis distinguishes between race and gender? Please be specific.

Do you think she would pass?

More thoughts from PoliBlog, George Will:

"It is not merely permissible, it is imperative that senators give Miers ample opportunity to refute skeptics by demonstrating her analytic powers and jurisprudential inclinations by discussing recent cases..."

Indeed.

I happen to agree with President Bush that he is entitled to withhold documents relating to Harriet Miers' service as White House Counsel.

Which is yet another reason why the nomination was outrageous to begin with.

Remember, most people who oppose Miers' nomination are doing so because, in their opinion, she lacks either jurisprudential credentials or ideological credentials. (I fall into the former camp.)

But the White House should have known that it would wind up trapped with respect to both camps:

"She is qualified."

--"How so?"

"She served as White House Counsel."

--"Okay, what exactly did she do as White House Counsel?"

"Sorry, for the sake of future presidents we can't disclose that."

It would be different if Miers had some — any — paper trail or line item on her résumé that suggested sufficient credentials. But instead we've now deteriorated from "You should trust me..." to "You have no choice but to trust me..."

But of course, the Senate does have a choice — to reject her nomination. And while the president may have no choice but to withhold the documents "for the sake of future presidents," he does of course a choice regarding this present nominee.

How soon before the unspeakable is spoken of and the unthinkable is thought about?

More thoughts at SCOTUSblog.

To me, the irony of the flawed and now failed nomination of Harriet Miers to the Supreme Court is that, from a strictly consequentialist perspective (which I dismiss utterly as a philosophical, jurisprudential or political approach), she might have done alright by libertarians, and perhaps even gays. To the extent that she would have done anything on the Court, I think she would have been far more moderate, far more eager to contribute to consensus building, and far less likely to default to "What would President Bush want?" than many people presumed.

I still suspect that the president will again seek to nominate a woman. A sitting circuit court judge is almost unavoidable given the Miers controversy.

I think the White House is too wounded, and too tired, to roll the dice with another lightning rod nomination such as Judge Janice Rogers Brown, let alone Attorney General Alberto Gonzales.

I will remind my readers that Circuit Court Judge Edith Clement is from New Orleans.

Finally, while I experience no Schadenfreude over seeing my President embarrassed, I take some comfort in knowing that the Senate, the media, the blogosphere and the people are still willing, sometimes and when it matters, to remind our leaders that government is not a toy, that with power comes responsibility, and that the office is always more important than the officeholder.