Cronyism is the signature of the Bush administration. Harriet Miers’ nomination to the United States Supreme Court is the high-water mark. The Senate should reject the nomination to honor the original meaning of the Constitution. As Alexander Hamilton amplified in Federalist 76, the Senate confirmation role was intended to “prevent the appointment of unfit characters from State prejudice, from family connection, from personal attachment, or from a view to popularity.”
President Bush’s sound track during two campaigns was Scalia-Thomas as the philosophical North Star for Supreme Court appointments. Miss Miers, in contrast, is an ink blot. On constitutional matters, to paraphrase Gertrude Stein, there is no there there. She has neither said nor written anything edifying about constitutional law or politics during more than three decades as a lawyer. Her nomination evokes Sen. Roman Hruska’s ill-conceived defense of G. Harrold Carswell: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren’t they, and a little chance?”
Miss Miers has taken to an extreme Saint Paul’s advice to be all things to all people. Her political loyalties have fluctuated between Democrat presidential aspirants Michael Dukakis and Al Gore to Republican hopeful Phil Gramm and President George W. Bush. Former Republican National Committee chairman Ed Gillespie conceded Miss Miers was a Democrat throughout the 1980s. Her unelaborated conversion to Republican ranks smacks more of expediency than conviction.
Miss Miers’ Supreme Court credentials are suboptimal, not to make too fine a point: graduation from Southern Methodist University with a major in mathematics contemporaneously with Laura Bush; personal attorney to Mr. Bush; general counsel to Gov.-elect Bush’s transition team in 1994; assistant to the president and staff secretary in 2001; deputy chief of staff in 2003; and White House counsel in 2005. Her acclaim by Sen. Harry Reid, Nevada Democrat, who has sneered at Justice Clarence Thomas’ competence, adds cause for skepticism.
The nominee has been conspicuously silent on every controversial constitutional matter in her generation, including Watergate, the legislative veto, Roe v. Wade, presidential war powers, Iran-Contra, prayer in school; the impeachment of President Clinton; the line-item veto; the death penalty; and campaign finance restrictions. If confirmed, Miss Miers can be expected to exceed the obscurity of Garbriel Duvall, who contributed but two words to constitutional law (“I dissent” in Dartmouth College v. Woodward (1819)), during 23 years of Supreme Court service. According to Carol E. Dinkins, a friend of Miss Miers and former deputy attorney general in the Reagan administration, the nominee thought lawyers should avoid public stands on social issues. In other words, as private lawyers, Associate Justice Antonin Scalia and defeated nominee Robert H. Bork skated over the edge of propriety in assailing the Supreme Court’s social engineering decisions.
The Senate Judiciary Committee should ask Miss Miers what contribution to constitutional thinking she would make on the Supreme Court; how many court decisions she has read carefully from beginning to end; how many hours’ discussion she has devoted to constitutional philosophy or history; how she would expect to enrich and influence court deliberations with her less-than-spare knowledge of constitutional law. A nominee needing years of on-the-job training is unqualified.
Miss Miers’ defenders insist she is likely to vote with Justices Scalia and Thomas in decisive cases. But the law pivots not on results but on reasoning, which guides subordinate tribunals, legislatures and executive officials. The power of the court is in explanations, not in ipse dixits. The idea Miss Miers would be intellectually equipped to write for the ages is preposterous, like believing an amateur writer would surpass Shakespeare if awarded a Nobel Prize.
In any event, since 1969, every Republican Supreme Court appointee like Miss Miers without steeled and sharp philosophical convictions has embraced freestyle constitutional law celebrating penumbras and mysteries of the universe as interpretive standards: Chief Justice Warren Burger, and Associate Justices Harry Blackmun, Lewis Powell, John Paul Stevens, Sandra Day O’Connor, Anthony Kennedy, and David Souter. Miss Miers is far more likely to follow the editorial pages of the New York Times and the academic exhortations of Harvard Law School Professor Laurence Tribe than the instructions of Justices Scalia and Thomas or of Judge Bork.
Mediocre minds resist challenges to prevailing orthodoxies, which means Miss Miers would neither disturb nor confine the court’s outlandish privacy, racial preference, church-state, death penalty, campaign finance, or enemy combatant decrees.
President Bush’s nomination of Miss Miers tacitly endorses a modified “petrified forest” concept of the Supreme Court ardently articulated by Sen. Charles Schumer, New York Democrat, i.e., its philosophical balance should be frozen in perpetuity irrespective of elections or popular will unless and until Democrats overcome Republicans in the White House and Senate. In other words, a conservative should replace a conservative, a moderate should succeed a moderate and a liberal should replace a liberal. Thus, if aging Justice John Paul Stevens were to retire, President Bush can be expected to nominate a liberal of the same or similar ilk.
To save herself and the Supreme Court from caricature or derision, Miss Miers should ask that her nomination be withdrawn. That act of statesmanship and courage would win her honor in the history books far surpassing anything she could accomplish by her appointment.
Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group. He has published an “Advice & Consent Handbook” on Supreme Court appointments and the judicial filibuster.