Cronyism and the Court

Only days after President Bush nominated John Roberts to replace Sandra Day O’Connor, I urged my fellow liberals to “sheathe their swords.” Because Roberts is a “brilliant . . . individual with superb legal skills,” I endorsed his confirmation – even though conceding he would likely (and regrettably) be a good deal more conservative than Justice O’Connor. When it comes to the Supreme Court, I argued, excellence matters.

Now we are presented with an entirely different kettle of fish. I have been a professor of constitutional law for more than thirty years and an editor of the Supreme Court Review for more than a decade, but until George Bush dredged up Harriet Miers from Dallas to join him in the White House, I’d never even heard of her.

Nominees to the Supreme Court are supposed to be individuals with serious records of achievement in the law. Consider those who have been confirmed over the past quarter-century: John Roberts (Harvard Law School, law clerk to Justice William Rehnquist, among the finest appellate advocates in the nation); Stephen Breyer (law clerk to Justice Arthur Goldberg, distinguished scholar of constitutional and administrative law at Harvard Law School, judge of the United States Court of Appeals for fifteen years); Ruth Bader Ginsburg (professor at Columbia Law School, one of the nation’s leading Supreme Court advocates, judge of the United States Court of Appeals for thirteen years); Clarence Thomas (Yale Law School, chairman of U.S. Equal Opportunity Commission, judge of the United States Court of Appeals); David Souter (Rhodes Scholar, Harvard Law School, justice of the New Hampshire Supreme Court, judge of the U.S Court of Appeals); Anthony Kennedy (Harvard Law School, professor of constitutional law for twenty-three years, judge of the U.S. Court of Appeals for thirteen years); Antonin Scalia (influential scholar of constitutional and administrative law at the University of Chicago, judge of the U.S. Court of Appeals for five years); Sandra Day O’Connor (Stanford Law School, majority leader of the Arizona senate, state court judge for six years).

Now consider Ms. Miers. She received her law degree in 1970 from Southern Methodist University, which is not even among the top fifty law schools in the nation. She then spent thirty years as a commercial litigator with a law firm in Dallas. Her most notable achievement before President Bush retained her as his private lawyer in 1993 was a brief stint as president of the Texas State Bar. After she made her connection with then-Governor Bush, he appointed her head of the Texas Lottery Commission. The president then brought her with him to Washington, and last year appointed her White House counsel. From there to the United States Supreme Court? Even nominees who have not been confirmed – Robert Bork, Douglas Ginzberg, Clement Haynesworth, (even) G. Harrold Carswell – were far more qualified that Ms. Miers.

Let me be clear. I have no knowledge about Ms. Miers’s views about the United States Constitution. I assume she’s conservative, but perhaps not. That's not the point. The point, rather, is that she appears to be unqualified for the position. There is nothing in her record that distinguishes her from tens of thousands of other lawyers in the United States, most of whom are undoubtedly fine lawyers, but few of whom have the background, experience, or intellectual depth to serve successfully on the Supreme Court. The Supreme Court decides the most fundamental questions of freedom of speech, equality, separation of powers, federalism, religious liberty, and privacy. The goal is not just to vote, but to bring a high level of wisdom, experience, principle, and intellect to the process of judging. It is no place for rank amateurs, especially rank amateurs with no record of relevant achievement.

From all appearances, this is rank cronyism. Other presidents have appointed their friends to the Supreme Court. But even the “cronies” were far more experienced and better qualified than Ms. Miers. Justices like Abe Fortas, Byron White, and Fred Vinson were close friends of Presidents Johnson, Kennedy, and Truman. But they were also individuals with impressive achievements in the law and government service. Ms. Miers’s record pales by comparison.

When Richard Nixon, no fan of the Supreme Court, nominated the forgettable G. Harrold Carswell thirty-five years ago, Senator Roman Hruska defended the nomination with an unforgettable bit of wisdom: “Even if he is mediocre, there are a lot of mediocre judges and people and lawyers. They are entitled to a little representation, aren't they, and a little chance? We can't have all Brandeises and Cardozos and Frankfurters and stuff like that there.” Have we sunk, again, to that level?

I cared enough about the Supreme Court to support John Roberts. And I care enough to oppose Harriet Miers, unless she demonstrates something in the hearings she’s never shown before.