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The case against Harriet Miers

Published: October 21, 2005
Section: Opinions

I, like many of my more legally interested brethren of all ideological spectrums, waited with eager anticipation for George W. Bushs selection of a nominee to be Associate Justice of the United States Supreme Court vice Sandra Day OConner, resigned. We all-with eager anticipation debated whether he would nominate a J. Michael Luttig (a protge of Justice Scalia) or a more moderate nominee, such as Circuit Judge Karen Williams or Attorney General Alberto Gonzalez. The question was never whether his nominee would follow in the paths of most recent nominees in being one of the most brilliant scholars in the field of Constitutional law or whether they would be tainted by cronyism-then came Harriet Miers.

Although I have disagreed with the President from time to time-such as when he signed into law legislation criminalizing the right to criticize government (which if our First Amendment means anything is surely protected)-I have never had occasion to rebuke him a public setting. To be sure, I have made from time to time the quiet remark of disagreement, a remark distancing myself from an action taken by the President, but I have never had occasion to publicly rebuke him in print: He was after all my President. I knew we disagreed over questions open to dispute among reasonable men, that he would do nothing utterly inexcusable or inexplicable. However, with the nomination of perhaps the most unqualified nominee since Harold Carswell, of whom it was said, Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, arent they?, and smacking of insipid cronyism, and certainly the greatest crony since Lyndon Johnsons attempted nomination of Justice Abe Fortas to be Chief Justice mere months before the latter was forced to resign under accusations of accepting bribes, I must speak out against the Presidents choice and do my duty as an American citizen, which is to call for the rejection of his nominee by the Senate.

Harriet Miers-while undoubtedly a good trial lawyer-is simply, to put it bluntly, not qualified to serve upon the Supreme Bench and in nominating her President Bush has slapped every legal scholar in the face and reduced the position of the Supreme Court to comic tripe. (As qualifications are a first order consideration and are apparent on paper they can be judged without any hearings, and thus I do not make a rush to judgment to condemn Miss. Miers, but rather speak on a full record)

When anyone thinks of the criteria of a good Supreme Court nominee the first thing that comes to mind-regardless of party-is that the nominee should be brilliant. What makes a brilliant nominee? Well, to follow the White Houses own approach of reviewing the precedents of recent nominations let us see what the precedents are for nominee qualification. John G. Roberts, graduated Harvard Magna Cum Laude (which the reader should know at Harvard entails almost a perfect A), Managing Editor Law Review, clerk to Circuit Judge Friendly (one of the most respected Circuit Judges of his time), clerk to Justice Rhenquist, Deputy Solicitor General, argued 38 cases before the Supreme Court, U.S. Circuit Judge;

Stephen Bryer, Harvard Magna Cum Laude, Editor Harvard Law Review, clerk to Justice Goldburg, Prof. Harvard Law School, U.S. Circuit Judge;

Ruth Bader Ginsberg, Columbia, Prof. Columbia Law School, argued 6 cases before Supreme court, U.S. Circuit Judge;

David H. Souter, Rhodes Scholar (from the New England pool), Harvard Magna Cum Laude, Editor Law Review, New Hampshire A.G., Justice New Hampshire Supreme Court, U.S. Circuit Judge.
Against this field the nomination of Miss Miers is demonstrated for what it is-a play to mediocrity. Miss Miers graduated from a law school that is second rate (anyone ever heard of Southern Methodist University before today?), was on a law review I have never heard of (which is saying something), clerked for a U.S. District Judge, and from that point on went into corporate litigation-held a bar position held by thousands of other currently available lawyers- writing not one law review article, arguing not once in front of the Supreme Court and appearing only 7 times in Circuit Court opinions in the WEST database, and finally was White House Counsel.

More fundamentally, as Prof. Barnett noted in his recent piece in The Wall Street Journal, appellate litigation is different from everything else in the law, and Supreme Court litigation from that. It is a uniquely special field which requires not only the threshold of stunning intellect to grasp, but in-depth practical experience to perform with any competence. You simply cannot decide case by case upon the Supreme Court;

you must have a legal philosophy, and to have a coherent legal philosophy you need not be able to articulate upon a moments notice how your philosophy would apply to, say, the question of a New Hampshire parental consent notification law, but to every one of the crevices in that gargantuan body of knowledge that is the law. But you do not have to take my or Prof. Barnetts words for it: Take that of the men who wrote the Constitution. As Alexander Hamilton makes clear in Federalist #76, such learning and experience is the sine quota non of a good Judge or Justice;

[constitutional law requires] that the records of [its] precedents must unavoidably swell to very considerable bulk and must demand long and laborious study to acquire a competent knowledge of them. Hence it is that there can be but few men in the society who will have sufficient skill in the laws to qualify them for the station of judges. The Federalist # 78, 439 (A. Hamilton)(Clinton Rossiter Ed. 1967).

Thus, Miss Mierss litigation practice-while evidentially extensive and distinguished-simply does not come even close to qualifying her for the Supreme Bench. To be sure she is excellent at advocating for a client at trial, but such knowledge does not even come close to forming the coherent legal philosophy needed for a seat on the Supreme Bench.

Having established Miss Mierss lack of qualification for the Supreme Bench, I must demand she be rejected by the Senate. For it is their duty to do so, as Alexander Hamilton wrote-explaining why the consent of the Senate should be required to the appointment of superior officers (the most important of which are those to the Supreme Court), [T]he necessity of their concurrence would have a powerful, though, in general, a silent operation. It would be an excellent check upon a spirit of favoritism in the President, and would tend greatly to prevent the appointment of unfit characters from State prejudice, from family connection, and from personal attachment, or from a view to popularity. The Federalist # 76, 425 (Clinton Rossiter Ed. 1967)(emphasis added). Miss Miers as demonstrated above is unqualified, and what else can the appointment of a person who is (1) unqualified to serve, (2) a longstanding friend of the president, and (3) his personal lawyer be other then favoritism?

I only hope the Senate does its duty and, as for my legal-minded friends and I, we will have to wait to have our great debate on judicial philosophy, because this nominee doesnt even get to that debate which is step 2, she fails on step 1-qualifications-and when that happens Hamilton tells us what to do: Reject the nominee out of hand.

As to the President, I would I like to think of myself as a forgiving man, but in this case sir, your forgivenesswill have to comefrom somewhere else.