Commentators on the right as well as the left —anyone, really, who thinks a Supreme Court justice should possess a record of world-class distinction—are groaning over Harriet Miers’ nomination. She may turn out to have a great legal mind. She may be a thoughtful, incisive Supreme Court justice. But there’s no reason to think so now. The problem isn’t that Miers hasn’t been a federal judge or a Supreme Court lawyer. It’s that she isn’t those things and she also doesn’t bring with her the breadth of experience that the other justices lack. Can anyone really imagine that she’d be the nominee if she weren’t a woman and the president’s friend and loyal adviser? Cronyism and affirmative action: It’s a nasty mix.
Comparing Miers to the woman she would replace—Sandra Day O’Connor—underscores why you don’t have to be snooty to think she’s a let-down. O’Connor graduated from Stanford University with high honors and, in 1952, at the top of her class at Stanford Law School. Miers got her undergraduate and law degrees from Southern Methodist University, finishing law school in 1970. O’Connor moved to Arizona with her husband and concentrated on having kids and raising them. She went back to work in 1965, part-time, for the Arizona attorney general’s office. According to this Washington Post profile, Miers was the first woman hired by the Dallas firm Locke Purnell Boren Laney & Neely. Her clients included Microsoft and the Walt Disney Co. So far, so good—Miers is winning, though O’Connor should probably start with handicap points since she was coming up in an earlier, more sexist era.
But O’Connor’s next move was to the Arizona Senate, to which she was appointed in 1969 and then ran for re-election. Miers, by contrast, stuck to the more comfortable private sector, becoming president of her 400-lawyer firm (Locke, Liddell and Sapp in Texas). In 1973, O’Connor became the first woman to serve as the majority leader of a state Senate—not just in Arizona, but anywhere. In 1992, Miers became the first woman to be elected Texas State Bar president. O’Connor ran again for election and won, this time for a county trial-judge seat. Miers’ friendship with Bush got her an appointment as head of the state lottery commission. O’Connor was tapped across party lines, by Democratic Gov. Bruce Babbitt, for the state court of appeals. Miers got a ride with Bush to the White House.
O’Connor didn’t have a national reputation when President Reagan chose her for the Supreme Court in 1981. She was a Westerner who’d stayed West. But she had demonstrated accomplishment, acumen, and moxie in the public arena. She is the justice you counted on to tell the other ones what it is like to write a law and pass it. Miers, by contrast, has advanced by impressing clients and other lawyers. She has one brief stint in public office: She served on the Dallas City Council for one term in the late 1980s. But her interest was short-term and limited. (When the council seats changed from citywide representation to single district, she decided not to run for re-election.) Her record includes nothing like O’Connor’s accomplishment of winning the support of voters statewide and then her fellow legislators (of whom 28 of 31 were men).
The words Miers’ supporters most often use to describe her are “discreet,” “dedicated,” “capable,” and, of course, “loyal.” Her critics today dejectedly compared those attributes to the praise heaped on John Roberts for his intellectual firepower and deep knowledge of constitutional law. The O’Connor model, however, demonstrates that the Supreme Court bar and the federal appeals courts aren’t the only place to look for highly qualified nominees. There’s Congress, state government, state courts, universities. Miers doesn’t come from any of those places either. She doesn’t even have Clarence Thomas’ track record of running a government agency (the Equal Employment Opportunity Commission).
For the Democrats who promised to charge hard at Bush’s second nominee after giving Roberts an easy ride, the problem will be going after Miers without sounding like a snob or a hypocrite. To question Miers’ qualifications could open up for attack the whole idea that it’s important to appoint a woman to the court, or a broader commitment to affirmative action. Sen. Edward Kennedy started trying to pick his way through this minefield this morning. He called Miers’ public record of writings and speeches “insufficient to assess” her qualifications as a nominee, and demanded that the White House release documents relating to her service for Bush during his presidency and Texas governorship. But Kennedy also said that Miers’ résumé “lists impressive qualifications as a practicing attorney.” That’s hardly the route to complaining about all the things she hasn’t done.
Instead, it is the intellectual right that’s on that case today (in the happy company of Bruce Reed). The National Review, which touted Roberts as a heavyweight with “stellar professional qualifications,” says that Miers comes up short by comparison. David Frum and others are tearing their hair out that Bush didn’t pick judges Michael McConnell or Michael Luttig, conservatives with renowned reputations as scholars and legal thinkers.
The real fear on the right, of course, is that Miers will turn out to be another Justice David Souter, a respecter of precedent who lets her colleagues pull her to the center and then to the left. Doubtful. On the surface, Miers has Souter-like qualities: She isn’t married, she mentioned her mother in her remarks this morning, and here’s a glimmer of evidence that she hasn’t always toed the conservative line. But if Miers isn’t a solid vote on the court in the Rehnquist-Scalia-Thomas model, why is Jay Sekulow of the American Center for Law & Justice, who has made it his mission to push for a nominee willing to overturn Roe v. Wade, crowing today?
The more plausible complaint about Miers, from the point of view of conservatives, is that she won’t have the intellectual prowess to pick the court up and move it, to persuade other justices with the power of her ideas. For moderates and liberals, the complaint is that Bush had plenty of opportunity to pick a woman without picking the one whose best qualification is that she’s his friend. Here’s a love letter I sent to my pick for female John Roberts, Maureen Mahoney. Here are three lesser-known women judges the Bush administration recently has been considering. Diversity doesn’t have to be this way.