Business schools may design entire new courses around the Cheney-esque lesson of Harriet Miers' nomination: If you want a job, head the search committee.
Beyond this obvious moral, what are we to make of Miers? The relevant question is not whether she would be the most liberal jurist since William O. Douglas held down the left end of the Warren Court. Rather, the politically realistic standard is comparative: Do the signs and portents suggest that Miers would be a more moderate jurist than the person whom George W. Bush would pick if she were rejected?
Since Miers has never served on the bench and her current work as White House counsel is rightfully off limits to prying congressional eyes, she offers less of a paper trail than Tony Soprano's tax returns. But a pre-1995 NEXIS search did turn up a few intriguing nuggets:
In early 1992, just months after the Clarence Thomas nomination fight, Miers was a panelist at the American Bar Association convention debating this eerily prescient case study: "You've been elected president of the United States, in part due to your views on abortion. In picking a Supreme Court justice, would you ask a potential nominee how he or she will vote in abortion-related cases?"
(Miers was presumably on stage at the ABA convention only because the event was being held in Dallas and she was the incoming president of the State Bar of Texas.)
Miers' response to the abortion question is revealing because back in 1992 nothing was riding on it. As then reported by the Associated Press, Miers declared, "Nominees are clearly prohibited from making such a commitment and presidents are prohibited from asking for it." Miers then added that partisans who believe that such how-will-you-vote questions are appropriate misunderstand "the separation of powers by proposing that judicial nominees should mirror a president's views."
Miers' comments suggest that her natural bent (at least then) was as a judicial traditionalist rather than a litmus-test conservative. True, hers was a safe answer, the kind of wallpaper comment that would not raise hackles at an ABA convention. But it also encouraging that Miers felt, with a Bush in the White House, that a Supreme Court justice should be independent of the president who made the appointment.
The obvious counter-argument is that George W. Bush knows Miers better than anyone else he could have nominated, with the possible exception of Attorney General Alberto Gonzales. (Miers incidentally gave Gonzales his big break by pushing him for the counsel's job on Bush's staff as Texas governor). The president did not have to quiz Miers on her views when they dined together Sunday night because Bush already knew them. By this logic, if Bush really wants another Antonin Scalia or Thomas on the Supreme Court then Miers, for all her bland exterior, is the devil in the blue dress.
But this is where speculation gets so tricky. Does Bush truly want to roll back the social order in this country -- on abortion, gay rights, affirmative action and (insert your pet cause here) -- or has he been mostly posturing to win the support of easily gulled evangelical Christians? Even if Bush would prefer to appoint another Scalia, has he opted for clean-slate Miers as the best he can do at a time of political weakness? Assuming Bush does know Miers' heart better than he knew, say, Vladimir Putin's, can the president accurately predict how she will vote on the Supreme Court when she becomes an independent actor with a lifetime appointment?
Miers' public record is akin to a few pieces of sharpened bone found at a Neanderthal burial site: You can read virtually anything you want into the fragmentary evidence. So it is tempting to over-interpret Miers' leadership role in the unsuccessful 1992-93 battle to overturn an American Bar Association policy position upholding abortion rights. But Miers was not championing an anti-abortion constitutional amendment nor heading the legal defense team for clinic bombers; she was trying to return the ABA to a position of neutrality on abortion. In short, it is impossible to know whether Miers is personally opposed to abortion or merely was uncomfortable with the national ABA taking a position that was divisive among lawyers in her home state of Texas.
My tentative inclination, based on relief that Miers is not on the fire-breathing fringe of the Federalist Society nor a disciple of John Ashcroft, is to give her the benefit of the doubt. Maybe it is because I find it laudable that Miers, after a decade of public service, is a near-pauper by Bush or Texas standards with a net worth between $220,000 and $595,000.
As a White House aide with a passion for anonymity and a graduate of the Karen Hughes Academy of Boring Utterances (see her robotic comments from her 2004 on-line chat on the White House website), Miers almost certainly will be polite, unflappable and non-revealing at her confirmation hearing. And the frustrating thing is that Miers' opaque facade is probably real. For, according to a 1992 clip from the Texas Lawyer, some of Miers' colleagues in the leadership of the state bar association likened her to none other than June Cleaver.