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Tuesday, October 4, 2005
By Dr. Steven Taylor

Yesterday was hectic and most of today has been occupied with matters of more immediate import than daily politics, hence I have not had to time to fully address the Harriet Miers nomination.

I am not pleased with the nomination, although couldn’t say how I would vote in the Senate at the moment, given that I do not yet have enough information. Certainly the hearings will be of more use this go ’round than were Roberts’. My qualms are less ideological than they are vested in the fact that the SCOTUS is a very special institution that should have very special members. I am not certain that Ms. Meir’s resume is suggestive of such a person. To put it another way, my current view mirrors that of John Podhoretz (as quoted by Steve Bainbridge) who calls the nomination “unserious.”

I have a multi-faceted reaction here. First there are some basics. I am surprised that she is as old as she is, but that isn’t a disqualifying factor (indeed, it just strikes me as curious from a political POV). I am further surprised that she has no judicial experience. Yes, I am aware that there have been a number of prominent contributors to the Court who have not been judges. I will even say that there is something appealing about the idea of picking someone, as Senator Leahy likes to say, “outside the judicial monastery.” Still, it does seem like an odd place to learn the ropes of the judicial branch, despite the historical precedent. If anything, if one is picking from outside the bench, then I would have preferred to see maybe someone with an academic background, or maybe someone with a prosecutorial background.

A second level of reaction is that I do think that she is likely qualified (at least in the minimal sense), but I am not especially impressed about the main accolades: first women at her firm, first female president of that firm, first female president of the Dallas and Texas bar associations. This is all impressive in its own way, but draws a giant yawn from me vis-à-vis the Court itself. Indeed, as William J. Stuntz wrote in TNR “She has the kind of résumé you expect to see in the director of a not-very-important federal agency” [That sounds about right–Ed.] (h/t: Bainbridge). Heck, I am not sure that resume would impress me if she was up for Attorney General (indeed, I am fairly certain it would not).

A third level of reaction is that I would like to see someone with a more intellectual disposition and background on the Court. I think that SCOTUS should be populated with thinkers. It is a place where we should seek to place our best legal minds. Indeed, on one level, I would prefer a brilliant liberal on the court than a mundane conservative. This is especially true when combined with my fourth level of reaction.

Fourth, I can’t shake the feeling that this is a cronyesque pick. It seems that the most significant part of her qualifications is the fact that the President has known her for decade. That ain’t enough to convince me, ladies and gentleman. (And reports like this don’t inspire confidence on the crony front).

Yesterday it struck me that Miers was kind of Alberto Gonzales light–insofar as she is a long-time friend from Texas who served as WH Counsel and who is a stealthy pick. Bush knew he couldn’t pick Gonzales, so went for the next best buddy.

Along these lines, Federalist 76 (as noted by Lawrence Solum) is most damning:

To what purpose then require the co-operation of the Senate? I answer, that the 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, from personal attachment, or from a view to popularity

I second James Joyner’s “ouch”.

In the end we appear to have a fairly run-of-the-mill candidate sans a judicial paper trail who is tarred by a profound sense that she is a crony-pick.

As such, this is all highly disappointing.

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5 Comments

  1. I tend to disagree with a couple of points. Rising to the top of a large law firm IS a big accomplishment, not a yawn. It requires lots of skills to distinguish yourself above all others where everybody holds a postgraduate degree and is in a large law firm because they’re ambituous and don’t mind working the 80 hour weeks.

    And not only academics and judicial appointees have an intellectual dispostion. Those of us who labor in the corporate world have been known to ponder deep thoughts at times.

    But the big point is Bush appointed someone with his brand of conservatism. Bush is a businessman above all — Harvard MBA, Oilman, head of an entertainment company. People who rise to the top ranks of anything appeal to guys like that. Add in a generous helping of loyalty, an understanding of business issues, maybe a bonus of winning an election and you’ve got the Bush model for his high appointments — Cheney, Powell, John Roberts, etc. He’s nothing if not consistent.

    Comment by Buckland — Tuesday, October 4, 2005 @ 9:20 pm

  2. I am not saying that only academics are intellectuals, nor am I saying that rising to the top of a major law firm isn’t a huge accomplishment.

    I am saying that she does not have any record of having an intellectual disposition–and that there are a large number of persons out there who do.

    I am largely disappointed that such a person was not nominated.

    And the loyalty card is actualyl somewhat troubling–I am not concerned, nor do I necessarily want, a Supreme Court Justice who is loyal to a specific President.

    And I don’t see John Roberts and Harriet Miers are being in the same category–ceratinly not at this point. The cronyism issue is a very legitimate one.

    Comment by Dr. Steven Taylor — Tuesday, October 4, 2005 @ 9:40 pm

  3. The 76th Fed

    Several bloggers (i.e. Poliblogger here and here, Lawrence Solum, James Joyner, and Randy Barnett of the Volokh Conspiracy in the WSJ) have noted the following text of Federalist No. 76:
    To what purpose then require the co-operation of the Senate? I …

    Trackback by A Knight's Blog — Wednesday, October 5, 2005 @ 7:31 am

  4. […] of thought? This strikes me as rather important. My basic views are here, and followed up here, here, here and here.

    No Comments
    »

    No comm […]

    Pingback by Pros and Cons » A Point of Clarification — Wednesday, October 5, 2005 @ 10:23 am

  5. Harriet Miers, meet Alexander Hamilton

    Ultimately, Hamilton’s logic about the reluctance of Senators to oppose the President’s nominee will prevail upon Republicans, and the result will be the defeat of Hamilton’s logic of senate confirmation protecting the Court from cronyism

    Trackback by Fruits and Votes — Sunday, October 9, 2005 @ 2:05 pm

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