Nobody should enjoy the humiliation of Harriet Miers, a person of estimable character who has accomplished much and deserves no opprobrium.
But the failure of President Bush's foolish, self-indulgent nomination was a victory for a principle: that we should insist that new justices combine character with extraordinary capabilities to deal with the enormous challenges that they will face. Chief Justice John Roberts more than fit the bill. Harriet Miers fell far short.
The lesson is that excellence matters. In assessing a potential justice with views in the broad mainstream of legal and political thought, excellence matters—even more than one's political or ideological affinity with the prospective nominee.
Some Miers supporters have suggested that criticisms of her nomination were tainted by sexism or elitist disdain for her middle-American background. Nonsense. Not a single serious critic has suggested that her gender, or her education at Southern Methodist University and its law school, or her career as an outside-the-Beltway commercial litigator should weigh against her.
Indeed, in my view all three traits would have been assets on a Court that now has nine former appellate judges. It also has only one woman (other than retiring Justice Sandra Day O'Connor), a surplus of Ivy League law school grads, and a deficit of real-world experience—in particular, in the world of commercial litigation, which provides insights into how the abstract principles handed down by the Court from on high work down in the trenches.
Miers was defeated by a combination of forces, of course, aside from the concerns of conservatives that she wasn't one of them, of liberals that she was, and the president's other political troubles.
Her intense loyalty to Bush—fostered by service as his personal lawyer and White House counsel—raised concerns that she might not exercise independent judgment in cases of importance to him. And the confidential nature of her White House work would have made it impossible for the Senate to scrutinize the very materials that would provide the best insights into her capabilities and approach to the Constitution.
These problems might have disqualified her even if she had the abilities of a John Roberts. Presidents should not try to put their White House lawyers, personal lawyers, or cronies onto the highest bench. And as Alexander Hamilton wrote in Federalist 76, the Senate's role is to provide "a check upon the spirit of favoritism in the president" and block judicial nominees who may act as "the obsequious instruments of his pleasure."
To a point, a large enough quotient of excellence can compensate for what might otherwise be disqualifying traits. President Franklin Roosevelt's attorney general, Robert Jackson, was not disqualified by cronyism or confidentiality, because his long career showed him to be a person of extraordinary ability and integrity—not the obsequious instrument of anyone's pleasure.
Extraordinary ability is crucial because the justices' main mission—in contrast to the roles that elected officials have come to play—is not to translate public opinion into policy. It is to resolve extraordinarily difficult and complex issues in ways that will simultaneously do justice to the parties; enunciate clear and coherent reasons so that lower courts and citizens can know what the law is; improve the law within the indistinct bounds set by legislative choices and constitutional imperatives; and understand the difference between improving the law and usurping the powers of elected officials.
Harvard Law School's Charles Fried described the qualifications in an October 23 Boston Globe op-ed worth quoting at length:
"What is indispensable is that she be able to think lucidly and deeply about legal questions and express her thoughts in clear, pointed, understandable prose....
"The Supreme Court [grapples with] the widest range of issues of importance to the law. To give some recent examples: What innovations are patentable and what should be the role of juries in deciding whether a patent is valid or has been infringed? Are police officers entitled to ask the passenger of a car to step outside when they have made a lawful traffic stop? Does the First Amendment protect a government worker if his boss thinks his complaints are a nuisance to the work of the office?...
"All these questions have two sides (at least) and present real puzzles, or else they would have been settled at some lower level. None of them will yield simply to good instincts and a pure heart ....
"Once a conclusion has been reached it must be announced in an opinion setting out the circumstances, the competing considerations, and the reasons for that conclusion [to guide those] dealing with the problem in the future.... The courts are the only organs of government whose job it is not only to decide contentious issues but to explain those decisions. Its most important product is those explanations, on which the enduring effect of its decisions depends."
A justice "without the strength of mind to pick her way through these intricacies and the skill to explain her decisions in understandable and compelling prose," adds Fried, "will flounder in a number of ways that would be disastrous for the law." She might "spin a web of confusion"; or "fall under the sway of one or more of his or her colleagues and so disappoint the expectation that a fresh and independent mind has been added to the Court"; or leave the writing to young law clerks "without wisdom, experience, or a constitutional mandate to help run the country."
Measure Miers against that standard. Her writings are neither clear, nor coherent, nor even grammatical. Many are (as columnist David Brooks put it) a "relentless march of vapid abstractions." Her initial responses to a routine Senate Judiciary Committee questionnaire were marred by constitutional illiteracies. I have seen no evidence that she has ever in her 60 years said (or written) anything especially insightful, wise, or witty about law or any other serious subject.
Miers's meager public record on important issues also exudes confusion and inconstancy, not clear thinking. Consider abortion, one of the few issues on which she has any record at all.
In her responses to a questionnaire from Texans United for Life in 1989, when she was running for the Dallas City Council, Miers checked "yes" to all 10 questions about whether she agreed with various anti-abortion stances. They included a vow to "actively support" both a federal constitutional amendment to ban all abortions except to save the woman's life, and state legislation to reinstate a similarly broad 1973 Texas abortion ban. No justice who wants abortion banned, even for rape victims, would hesitate to overrule Roe's almost unlimited abortion right.
But four years later, Miers did a 180-degree turn, suggesting in a speech to the Executive Women of Dallas that women should be free to abort their fetuses:
"The ongoing debate continues surrounding the attempt to once again criminalize abortions or to once and for all guarantee the freedom of the individual women's [sic] right to decide for herself whether she will have an abortion," Miers's speech text says. Then come two sentences about activities "in public places or public schools" and "the law and religion." Then this: "The underlying theme in most of these cases is the insistence of [sic] more self-determination. And the more I think about these issues, the more self-determination makes sense. Legislating religion or morality we gave up on a long time ago."
Miers did seem predictable in one area: She would have rubber-stamped even the most grandiose claims of presidential power made by President Bush. This is a woman who as White House counsel has inherited and perpetuated some of the most sweeping claims of presidential power in modern history. These include Bush's claim of power to have the military seize, imprison indefinitely without meaningful due process, and coercively interrogate anyone in this country or the world whom he considers an "enemy combatant." Miers also presumably approved the White House's ongoing battle against efforts by Sen. John McCain and others to ban "cruel, inhuman, and degrading" treatment of such prisoners.
And by calling Bush the most brilliant man she has ever met, sending him sycophantic notes, and sprinkling speeches with paeans of praise, Miers has carried loyalty to the point of toadyism.
Such a second-rate, compliant courtier was a bad bet to act as a check on presidential overreaching. Bush needs to do much better. A first-rate man would be better than another second-rate woman. A first-rate woman would be better still.