- The Washington Times - Tuesday, October 4, 2005

This president is just full of surprises. That can be great fun. It’s a deeply satisfying experience to watch the punditry mystified, or even pretend not to be, by his latest nominee to the Supreme Court of the United States.

At this point, there may be no better description for Harriet Miers than Unidentified Woman in Background.

Madame X may not remain a mystery for very long, but the 15 minutes of nonfame she’s enjoying makes for a delicious break from the 24 hour a day, seven days a week overexposed world that threatens to overwhelm our judgment with data.

Miss Miers’ great advantage is lack of a clear paper trail. She won’t have one if this administration can keep its confidences. That has been a challenge for every presidential administration since the one headed by G. Washington, the most discreet of gentlemen and generals.

It’s a great advantage to be a mystery candidate, a Stealth nominee whose trail leaves behind only a stream of shiny platitudes that confounds any attacking missiles. For example, Oct. 3 Miss Miers said, “It is the responsibility of every generation to be true to the Founders’ vision of the proper role of the courts in our society.”

The ideal nominee for the bench should present a perfectly platonic emptiness, an ideal form without material content, and for the moment Miss Miers fits the bill exactly; she is the perfect, abstract nominee.

Miss Miers’ great disadvantage is also her lack of any clear paper trail, for though she’s clerked for a judge, she has never been one herself — a lack of experience her utterly predictable critics pointed out immediately:

“We know even less about Harriet Miers than we did about John Roberts and because this is the critical swing seat on the court, Americans will need to know a lot more about Miers’ judicial philosophy and legal background before they vote for confirmation,” said Chuck Schumer, senior senator and nudnik Democrat from the Great State of New York.

Gosh, what a surprise to find the senator lacks neither words nor ill will on this occasion, too.

The country can only hope Harriet Miers’ will bring to the high court the same lack of judicial experience John Marshall honed to greatness. For to lack judicial experience is not to lack experience. Chief Justice Marshall certainly had no lack of partisan experience, which is one thing the current nominee should have in abundance by now.

Miss Miers’ great advantage is a wealth of experience off the bench — in corporate law, in managing a huge Texas law firm, and in representing the bar. She did so long enough to learn the American Bar Association has no business clearing presidential nominees to the bench, having become another political pressure group.

Chief Justice Willliam Rehnquist used to stress the importance of drawing judges from “a wide diversity of professional backgrounds” rather than only from the judiciary itself. (Gosh, do you think he could have had his own background in mind?) At any rate, the nomination of Harriet Miers to the high court, like William Rehnquist’s, certainly meets that particular need.

Miss Miers’ great disadvantage is that, while her experience in the law may be diverse, her experience in life may not be. The law has pretty much been her life, for she’s one of those early-to-rise, late-to-leave-the-office types who, however admirable and useful, tend to worry some of us. As has been well said, the law sharpens the intellect by narrowing it. And the law even more than other professions profits by the widest experiences and broadest intellects. For the law must take into account and even anticipate the ever fluid contours of the life it would shape. Or it will become but another brittle casualty of reality.

Harriet Ellan Miers now emerges out of the background into … what? History, fame, controversy, celebrity? Probably all the above. All Americans will wish her and the law well as both go under the magnifying glass of public contention. It’ll be a test — not only for the nominee but all those questioning and appraising her. Instead of just another partisan fight, it could prove an education — if we let it.

Paul Greenberg is a nationally syndicated columnist.

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