Analysis: Some Initial Thoughts
I really need to get down to the Court to argue but wanted to note my sense that the President’s nomination creates a very interesting political dynamic - one that places the nomination in peril. The nomination obviously will be vigorously supported by groups created for the purpose of pressing the President’s nominees, and vigorously opposed by groups on the other side. But within the conservative wing of the Republican party, there is thus far (very early in the process) only great disappointment, not enthusiasm. They would prefer Miers to be rejected in the hope - misguided, I think - that the President would then nominate, for example, Janice Rogers Brown. Moderate Republicans have no substantial incentive to support Miers, and the President seems to have somewhat less capital to invest here. On the Democratic side, there will be inevitable - perhaps knee-jerk - opposition. Nor does Miers have a built in “fan base” of people in Washington, in contrast to the people (Democratic and Republican) who knew and respected John Roberts. Even if Democrats aren’t truly gravely concerned, they will see this as an opportunity to damage the President. The themes of the opposition will be cronyism and inexperience. Democratic questioning at the hearings will be an onslaught of questions about federal constitutional law that Miers in all likelihood won’t want to, or won’t be able to (because her jobs haven’t called on her to study the issues), answer. I have no view on whether she should be confirmed (it’s simply too early to say), but will go out on a limb and predict that she will be rejected by the Senate. In my view, Justice O’Connor will still be sitting on the Court on January 1, 2006.
The nomination of Harriet Miers is certainly a peculiar choice following the Roberts nomination. I know there is no constitutional requirement that Supreme Court justices be chosen from the judiciary; indeed, some of the great justices, such as Holmes and Jackson, had never been judges before they were nominated to the Court. But from what I can gather from folks familiar with her here in Texas, Ms. Miers is no Holmes or Jackson.
This nomination has the strong odor of cronyism and political patronage. It is hard to take this nomination seriously, and I predict Ms. Miers will not make it out of committee, if she does not withdraw her own nomination first.
I am almost cynical enough to believe that Bush never wanted to nominate Ms. Miers, but has done so to appease his wife and/or one or more of his political constituencies. When Ms. Miers fails to get confirmation or withdraws her name from consideration, then he can name the man he really wanted all along, Alberto Gonzales.
Comment by AllanCook — October 3, 2005 @ 9:35 am
Shrewd SCOTUS Pick or The Ultimate In Patronage?
This is a huge gamble for the President. He is either a genius and knows something we don
Comment by Oblogatory Anecdotes — October 3, 2005 @ 9:40 am
UTTERLY UNDERWHELMED
What Julie Myers is to the Department of Homeland Security, Harriet Miers is to the Supreme Court. (Video of the announcement here via NYT).) It’s not just that Miers has zero judicial experience. It’s that she’s so transparently a crony/”diversity”…
Comment by Michelle Malkin — October 3, 2005 @ 9:41 am
Harriet Miers nominated for Supreme Court
If there’s one thing we know about President Bush it’s that he places a very high value on trust and personal loyalty up to and beyond a fault. Today Mr. Bush nominated White House counsel Harriet Miers for the Supreme Court of the United…
Comment by The Glittering Eye — October 3, 2005 @ 9:44 am
A side point: Holmes had sat on the Massachusetts Supreme Judicial Court for twenty years, from 1882 to 1902, before being appointed to the United States Supreme Court.
Not that there aren’t plenty of other examples of Supreme Court Justices who had never been judges before.
Comment by Stuart Buck — October 3, 2005 @ 9:49 am
The problem with the “inexperienced” label is that if anyone has experience, it’s Harriet Miers! The only credential she lacks is judicial experience. But she has trial litigation experience, she has successfully run for elective office, she has managed a major law firm, a city and a state bar association, nearly took the number 2 position in the national bar association and served as White House counsel instead.
The real-life experience she has as a litigator and managing a major law firm would serve her well with regard to understanding business cases and how courts work, something that the academics on there now seem not to understand.
As for how conservative she is, it’s obvious that she is a stalwart conservative. She is the one who has been picking the conservative radicals to stack the federal judiciary! She’s the one Cass Sunstein is whining about! Not only that, but her inside-track look at how the executive branch functions makes her a perfect fit for the President’s War Agenda.
What’s more, Miers has legitimately blazed a trail for women in the law with her career, much more so than could be said for Sandra Day O’Connor before she was selected for the Supreme Court. She certainly has more experience than Brandeis and Rehnquist did when they were tapped for the Court.
Do we really doubt that someone who has managed a bar association and been a trial litigator on behalf of a multinational lacks the perspective to adjudicate a case? That’s a silly notion.
As for the suggestion that she lacks experience with federal questions, she clerked for a federal district court judge. Anyone who has attended law school knows federal clerkships require hands-on experience with federal questions. She has had an inside-track view of what it is like to be a judge, when she was a clerk.
The claim is already being made that Miers lacks “political” experience, notwithstanding the two years she served on the Dallas City Council — which is more hands-on legislative experience than most judges. But that criticism ignores the fact that working in the Executive branch and serving on a transition team for a Presidential campaign is “political.” There are two political branches, one of which is the Executive. This woman has so much executive experience her middle name might as well be CEO.
Lastly, opponents to Miers’ nomination claim that she lacks a strong base of support and she is nothing more than Mier’s crony. While that attack might have worked against Alberto Gonzalez, all one need do is trot out Harriet Miers’ catalog of trophies and awards from all the bar associations that feted her. She has tremendous respect within the legal community because she is a qualified lawyer, not because she is W’s pal. There will be few conservatives who will doubt that Harriet Miers, the woman who has been hand-picking the Janice Rogers Browns and John Roberts’ to serve in the federal judiciary will take the same approach to stacking the law in favor of conservatives.
Jay Sekulow and John Cornyn seem to be celebrating already.
Comment by Commentator — October 3, 2005 @ 9:58 am
Harriet Miers Nominated for SCOTUS
As overwhelmed as I was about the John Roberts nomination, I am equally underwhelmed by the Harriet Miers pick.
…
Comment by UrbanGrounds — October 3, 2005 @ 10:04 am
Coming on the heels of the Roberts confirmation hearings she is going to appear even more unqualified. Given Roberts’ stellar performance, I was going to feel sorry for whoever followed in Roberts’ footsteps. But this is just ridiculous. Who exactly is the President appeasing with this nomination?
Comment by Hirbod — October 3, 2005 @ 10:50 am
AllanCook said: The nomination of Harriet Miers is certainly a peculiar choice following the Roberts nomination…
This nomination has the strong odor of cronyism and political patronage. It is hard to take this nomination seriously, and I predict Ms. Miers will not make it out of committee, if she does not withdraw her own nomination first.
Sort of my feeling too. Originally I thought that Bush might nominate Miers to replace Roberts on the Federal Circut Court. Since he didn’t do that, the thinking may be that whoever got nominated following Roberts was going to be toast up on the Hill, so Meirs may be a stalking horse so that Bush can nominate Luttig or some other white male for this “woman’s seat” next.
But what if the Senate Democrats after a little initial screaming decide that Harriet is the best they can hope for? Then Bush wins in a different way. He may alienate some of the conservative base–but he is never running for office again. If the Democrats roll over for a second Bush Supreme Court nominee, the Democratic base will be howling for (Senate Democratic) blood.
I also wouldn’t be surprised if George Bush has a better feel than we do for whether a third seat will open on the Court during his remaining time in office. (Well, more realistically in the next two years.) If so, putting Harriet up as a sacrifice may make more long term strategic sense.
But my guess is that Harriet has about an 80% chance of being confirmed, even if that was the White House plan. She could always say something stupid, or not spend the next month reviewing ten years or more of SCOTUS decisions. But she didn’t get this far by opening her mouth at the wrong time, or arriving in court unprepared. In fact, she seems to have done a lot of the necessary legal case work preparing John Roberts for the Senate Judiciary hearings. I think that having watched John Roberts get through the hearings gives her a huge leg up…
Comment by Robert I. Eachus — October 3, 2005 @ 10:55 am
Hey, what happened to my comment?
Comment by Commentator — October 3, 2005 @ 11:12 am
“On the Democratic side, there will be inevitable - perhaps knee-jerk - opposition.”
You are wrong. Liberal Democrats know a liberal-in-training when they see one. This nominee, if confirmed, will likely vote with the Souter-Ginsberg bloc of the Court. That is why Harry Reid is already supporting her.
The Republicans will support her because they will instinctively rally around the President. Democrats will support her because she has no backbone, no conservative judicial philosophy, and so she will eventually vote with the Left-wing of the Court. Miers will SAIL THROUGH the nomination.
It is a fools hope that her nomination will be derailed. And what will happen is this: conservatives will abandon the Republican party in droves, and the Republicans will lose the House in 2006. If anything, this nomination proves that the GOP are fools of the highest caliber.
Comment by Sydney Carton — October 3, 2005 @ 11:24 am
In terms of her qualifications, Miers reminds me of Clarence Thomas. Unlike Miers, Thomas was a judge at the time of his appointment, but he had been on the bench for only a short time. Nothing in his earlier background suggested he was a Justice-in-waiting. Whatever you may think of how Thomas has turned out, he certainly had among the weakest credentials of anyone ever confirmed to the Court.
Nevertheless, Thomas was confirmed (barely), and that was in a Senate where the Democrats had more seats than they do now. Some Republicans may be scratching their heads over this nomination, but they won’t desert the President in great numbers unless there turns out to be some serious dirt in Miers’s past.
On a personal level, I am disappointed. No matter how talented Miers may be, someone who has not spent a career thinking and working with these issues is going to have an awfully steep learning curve. With so many clearly qualified conservative jurists available, why Miers?
Comment by Marc Shepherd — October 3, 2005 @ 11:37 am
Musing on Miers
MUSING ON MIERS….I’m reading Jacob Hacker and Paul Pierson’s Off Center at the moment (more about that later), and one of the points they make is that because ultraconservatism isn’t actually very popular in the United States, ultraconservatives like…
Comment by Political Animal — October 3, 2005 @ 12:19 pm
A Rebuke of Bush’s Pick?
Tom Goldstein at gives a rather damning introduction of Harriet Miers to the SCOTUSblog readership: [W]ithin the conservative wing of the Republican party, there is thus far (very early in the process) only great disappointment, not enthusiasm. . . ….
Comment by Law Dork — October 3, 2005 @ 12:27 pm
Miers is a great disappointment. Conservatives should not be pleased…nor should they support this nominee.
There are so many more qualified conservative women that we can count to sit on the Court for decades. Judge Diane Sykes of the 7th Circuit is too often overlooked.
Read this from her native Wisconsin.
Comment by buckster05 — October 3, 2005 @ 12:53 pm
I agree with Tom that Democrats will use this to damage Bush, but by I think they will take a different approach.
They will damage Bush by supporting Miers, not by fighting her. This strategy will feed the Right’s paranoina and build mistrust of Bush. It will appear that Bush is conceding to Harry Reid, which is why Reid was first on the record this morning with a positive comment about Miers.
Because of Miers’ past support of Democratic presidential candidites, it will be easy to spook Bush’s base. The more the Dems like Miers, the weaker Bush looks.
Comment by Bash — October 3, 2005 @ 1:59 pm
I would suggest that Miers will be confirmed, but I hope that if this comes to pass, she will be confirmed only with the assistance of the Democratic members of the Senate, which I hope would be a humiliating snub of the President which might just snap the GOP out of this insane cult of Bush that seems to have seized us since 2000. However, I just don’t think there are enough independent-minded GOP Senators to reject the nominee, unless the base goes absolutely apesh*t during the next ten days.
I would have preferred Judge Alito. I do not know enough about Ms. Miers to say whether she is a good or a bad choice - which is, in itself, a stroke against her. I was not happy at the selection of Roberts because while he clearly posseses a voluminous knowledge of the law, I did not feel he had a sufficient record of preference for text over precedent: the same applies, a fortiori, of Ms. Miers, who one cannot but doubt posseses the sort of knowledge of our new Chief, and is unlikely to have the sort of written record I would prefer.
Beyond that, I would refer merely to my comments at UTR. This nominee bears a heavy burden to demonstrate that she is a process-oriented originalist - who I could support - or merely a results-oriented currently-conservative-inclined believer in “the living constitution”, who needless to say I would not support.
Comment by Simon — October 3, 2005 @ 2:04 pm
Harriet the Justice
Tom Goldstein at SCOTUSblog predicts that the Harriet Miers nomination will be rejected: The nomination obviously will be vigorously supported by groups created for the purpose of pressing the President’s…
Comment by dustbury.com — October 3, 2005 @ 2:07 pm
I am struck by the tenor of the comments on the nominee so far, which seem to me to be a little parochial and to focus almost solely on Ms. Miers’ lack of Federal Appellate Court or direct Constitutional law experience. I like the nomination because (1) she is a trial lawyer who has actually been in a court room and represented clients in litigation under our system, something no one else on the Court has done; and (2) she has held an elective political office, (Dallas City Counsel) and understands government from that perspective, something only Justice O’Connor has experienced among current Court members. Not all useful knowledge can be gained on the Federal Court of Appeals. In addition, she was reportedly the first woman hired by her large Dallas law firm and she rose to managing partner. Not all first rate minds come from Harvard Law and large Dallas firms hire quality people. (Plus, she probably had to be better than the guys when she was hired). In addition she must be a natural politician to rise in management of a large organization of lawyers, since most people have found managing lawyers to be like herding cats. This quality is bound to be helpful on the Court. Just a few thoughts from a Texas trial lawyer who does not know Ms. Miers other than by reputation.
Comment by Texas52 — October 3, 2005 @ 2:18 pm
Who said only Democrats may filibuster an unsatisfactory nomination?
Comment by Dale Griblle — October 3, 2005 @ 3:12 pm
From SCOTUSblog
SCOTUSblog: Analysis: Some Initial ThoughtsI have no view on whether she should be confirmed (it’s simply too early to say),…
Comment by Daily Pundit — October 3, 2005 @ 3:16 pm
Candidly, I’m a little surprised by the quick, almost rash, judgments issued over Ms. Miers’ appointment. It would seem that this individual has accomplished as much, if not more, than other justices in terms of legal experience. I look forward to hearing more, and certainly await her appearing before the Senate for questioning. Patience is necessary.
Comment by Jonathan Franklin — October 3, 2005 @ 8:11 pm
I agree that Miers will not get confirmed.
Where I differ is that I think it is Janice Rogers Brown all the way.
Bush gives the Democrats a moderate who can’t pass muster and then puts up a libertarian Black Republican female who has already got a Senate endorsement on paper.
Makes sense to me.
We shall see.
First step. Defeat Miers.
Comment by M. Simon — October 3, 2005 @ 11:02 pm
Texas52 - in re point(2), by definition, elective office is a majoritarian enterprise. If she has held elective office, what might holding elective office teach a person other than that the “right” answer is the one that pleases the majority?
Dale - if the GOP now turns around and filibusters Myers, we will look preposterous, hypocritical and absurd. Likewise, I disagreed at the time with the strategy of saying “the Senate should defer to the President, just worry about whether he’s qualified” - now conservatives in the Senate, who likely (hopefully) share the concerns of those of us online, have backed themselves into a corner where they cannot vote against Miers with a straight face.
Comment by Simon — October 4, 2005 @ 10:06 am
Dale Griblle asked, “Who said only Democrats may filibuster an unsatisfactory nomination?”
Technically, anybody can filibuster. But generally, filibusters are a technique the minority employs to thwart the majority. The Republicans are already in the majority, so if they want to defeat Miers, they have plenty of other ways to do it.
The President’s spin machine is in overdrive, and I’d say it’s clear that Miers will be confirmed unless (and this is a big caveat) there are some serious blots on her background that have not yet come to light.
Comment by Marc Shepherd — October 4, 2005 @ 11:09 am
Can’t say I expected this
President Bush has nominated White House counsel and Dallas-based attorney Harriet Miers to replace Sandra Day O’Connor on the Supreme Court of the United States. Ms. Miers has never been a judge before, the first such non-judge nomination since that…
Comment by Houston's Clear Thinkers — October 4, 2005 @ 11:56 am
She is totally unqualified. She has never practiced constitutional law. This is rank cronyism. On a side note, apparently the United States Senate has lost its mind. Somehow, it is an advantage that Miers has no judicial experience (see John Coryn, loyal Republican hack). In no other field of life,that I am aware of, is experience a negative thing. Miers, unfortunately, will be easily confirmed.
Comment by Jack Davis — October 4, 2005 @ 11:58 am
To Jack Davis: she is not “totally unqualified.” Numerous Justices have served with qualifications comparable, or indeed inferior, to hers. However, it is fair to say she is less qualified than the typical nominee, and it is difficult to see why the President thought this was an advantage.
The President could appoint his pet dog, and at least *some* Senators would come to his defense. That’s how party politics work. When Nixon appointed Carswell and Hainsworth in the 1970s (neither of whom was confirmed), it was pointed out that they were mediocre. One of the Senators replied, “Shouldn’t the mediocre citizens of this country have a voice on the Court?” (Sorry I don’t remember the exact quote, but it went something like that.)
Comment by Marc Shepherd — October 4, 2005 @ 2:21 pm
Simon, from what I have read Ms. Miers worked with a group of people who had divergent views and tried to reach a consensus. Last time I checked it still takes five votes on the Court to win. Is that not a “majoritarian enterprise”? What I was really thinking of, though is just the variety of life experiences, outside the ivory tower of academe and the appellate courts, in which you see the consequences of your actions, listen to other people’s views, etc. that would make for a good jurist.
Comment by Texas52 — October 4, 2005 @ 4:35 pm
Texas52-
A couple of points here. You’re right, of course, that a case is won or lost on a majority vote of five out of nine. But in such a context, surely the right answer is not simply the answer with which less Justices disagree? It seems to me that the right answer is that which can most clearly and coherently put forward. I don’t often agree with Justice Breyer, but he is certainly a worthy adversary to Our Hero; he has not attained that status, nor often won cases, simply by offering an answer which might be right, he has done so, surely, by putting forward a compelling intellectual case for his view of the case. “I feel strongly about this”, or “this result seems fair” won’t cut it.
Which leads me onto the second point, which is as a rejoinder to your note that “the variety of life experiences, outside the ivory tower of academe and the appellate courts, in which you see the consequences of your actions, listen to other people’s views…that would make for a good jurist”. While no one would disagree that listening to other people’s views is a bad thing, I am not so convinced that either her experience as a lawyer is a good thing, untethered from an intellectual counterbalance as a Judge or academic, or that her experience in the trenches is a good thing. I explained my concern on the first point here. To the other point, my concern would be that experience with the real-world consequences of one’s judgements is likely to make a Justice pause to consider whether a ruling which is constitutionally necessary should be made if it had far-reaching practical effects. In my view, a Justice should not entertain such concerns. For example, in Blakely v. Washington, I do not think that Justices O’Connor and Kennedy were necessarily mistaken in their dire predictions. My point in rebuttal would simply be “so?”. The bill of rights was written to protect basic rights; in my view, it was not written to make government easy, it was written to make it hard. Justice Scalia’s majority opinion rightly point-blank ignores the concerns of the dissents, because they are immaterial to the point at hand.
My concern is that Miers is too likely to be result-oriented; she has a background in a results-oriented career, without firm anchorage in constitutional theory, and her experience in the trenches may make her like the General who has grown too fond of his men to order the assult.
Comment by Simon — October 5, 2005 @ 1:09 pm
Oops - forgot to close the tag!
Comment by Simon — October 5, 2005 @ 1:10 pm