Harriet Miers, it appears, has definitively confirmed the initial impression of someone who is utterly unqualified for the position of Supreme Court Justice. As far as I have heard, she has never even argued a case before the Court, or perhaps even stepped inside the building. She was nominated because she is a trusted friend of George W. Bush who will vote to protect him and his policies over the next decade or so. Other than that, and some hints from her history of political donations and which church she attends, she’s pretty much a cipher.
Nobody outside the White House is happy with this nomination. Conservatives are upset that they weren’t given an overtly ideological nominee with a well-articulated judicial philosophy (either social-conservative or laissez-faire libertarian, depending on one’s personal tilt). But liberals are really in a pickle. On the one hand, there’s no reason to think that Miers is anything other than a knee-jerk social conservative and protector of ulimited executive power. On the other, she isn’t an outspoken slouching-towards-Gomorrah conservative activist who will disguise an extended attack against civil liberties as a high-minded intellectual stance. And if Miers is not confirmed, the next nominee is quite likely to be such a person — and we can be confident that it won’t be anyone who will loudly affirm their support for Roe v. Wade during the confirmation hearings. So liberals are presented with an interesting philosophical question: given that it’s very unlikely we will be happy with the actual votes of any of Bush’s nominees to the Court, which is preferable, a competent conservative or an incompetent one? (Conservatives, of course, are in a different but equally interesting pickle.)
Cass Sunstein alludes to this issue on the new University of Chicago Law School blog:
We might distinguish between two grounds for evaluating Supreme Court nominees. The first is technocratic. Is the nominee excellent? Does the nominee have relevant knowledge and experience? The second ground is political. How is the nominee likely to vote? How does the nominee approach the Constitution?
As I’m sure Sunstein recognizes, that gloss of “excellent” is a little too glib. What does “excellent” really mean? Or even better, what good is excellence? Extraordinary competence in the service of bad ends is no virtue. For those of us who are likely to disagree with the political stance of a conservative Justice, we have to wonder who will do more damage: a technocratically excellent conservative, or a non-excellent one?
Roberts was, in my view, not worth opposing. He was experienced and competent without being the fire-breathing reactionary that many of the alternatives were. Ironically, the best articulation of the reasons to support Roberts were given by Barack Obama, who ended up voting against him. We have to pick our battles, and recognize that losing elections limits what can be accomplished. I don’t see any reason to believe that a subsequent nominee from the Bush administration would be any less objectionable than Roberts, who at least is not laughably unqualified.
But Miers is. And ultimately, for me, that’s the deciding point; liberals have to oppose Miers, simply on the basis of her complete lack of qualifications for the job. Mark Schmitt gets to the heart of the matter:
I realized last night that all this is too much double-thinking. The one and only thing to remember about Miers is that she is totally unqualified to sit on the Supreme Court. It’s not a particular thing, like that she went to second-string law school or has never been a judge or never argued a case at the federal appelate level. Nor is it that she’s been disbarred or fell asleep in court or stole money from escrow accounts. (None of which are true, as far as I know.) It’s that there’s nothing there. Take away the George W. Bush-loyal-staffer aspect of her resume, and there’s absolutely nothing except some modest corporate law-firm and bar-association management, skills that are of no relevance to the Court.
(See also Belle Waring and Kieran Healy. Scott Lemieux wavers, but ultimately comes down on the other side. Thank goodness for the blogosphere; in the old mainstream-media days it would have been nearly impossible for non-experts to get such nuanced commentary so quickly and accessibly.)
There are two very good reasons to value competence, even in someone of a disagreeable ideological cast. The first is a basic respect for the instution. It’s the Supreme Court we’re talking about here, not a sinecure for loyal cronies like the Federal Emergency Management Agency! We have to think beyond this particular nomination, into the much longer term. Precedents matter, in the actions of Congress and the President as well as for the courts, and we can’t allow it to become accepted practice to appoint unqualified personal friends to the Supreme Court. Ultimately, nobody wins if that becomes the standard.
But the second reason is just as important, if not more so: there’s no reason to think that, just because a certain conservative is less of a great legal mind, that they can’t end up doing far worse damage in the long run than an intellectually powerful ideologue. Miers is not an ideologue, she is a hack. Her loyalty is not to a philosophical system, it’s to George W. Bush. And that could be a disaster. She could end up not only sanguinely voting to overturn abortion rights and other privacy protections, but to systematically protect the executive branch from any form of judicial oversight. We don’t want someone on the Court who will cheerfully scuttle the Constitution in order to uphold the government’s right to torture people and to hold citizens in indefinite detention without legal recourse.
If Miers is rejected by the Senate, the next nominee will certainly be someone quite unpalatable to liberal sensibilities. But at least it could be someone who knows their way around the Constitution. And that should be a minimum standard for serving on the highest court in the land.
October 7th, 2005 at 1:23 pm
I think her comment that GWB is brilliant pretty much says it all. This reminds me of one of those game shows. “Do you want to keep the high volume self-propelled snow blower or do you want to trade it for whats behind door number 3?”
One thing I assume is that this nomination was (yet another) carefully calculated move by Karl Rove. Perhaps he is looking ahead to the day his conviction on revealing Valerie Plames name will be on appeal before SCOTUS and he wants all the friends he can get on the court.
Yes it is a dilemma. But in my gut I think that competence does matter and she should be rejected. I think that respect for the institution needs to be maintained.
I have a law degree (never practiced) but there is something dignified about the law and its application that is worthy of maintaining just as adhering to a rigorous scientific methodology is the right way to do science.
October 7th, 2005 at 1:48 pm
Putting Harriet Miers on the Supreme Court would be like putting Lubos Motl on the faculty of Harvard.
Bad example.
October 7th, 2005 at 2:14 pm
I agree, we already have two other branches of government run by no talent hacks (of all political persuasions), why let them into the third?
October 7th, 2005 at 2:42 pm
>liberals have to oppose Miers, simply on the basis of her complete lack of qualifications for the job
The qualification being that one must be well versed in the traditions of an institution before being able to do any good in that institution?
That seems awfully arbitrary and elitist.
October 7th, 2005 at 2:55 pm
I think that the job of Supreme Court Justice should be reserved for the best legal minds we have. If you’d like to call that “elitist,” be my guest. It’s the opposite of “arbitrary,” though.
October 7th, 2005 at 3:10 pm
Put perfectly simply: while I’d rather have neither, I’d take Scalia over Thomas any day.
October 7th, 2005 at 3:12 pm
It’s hard to claim that she’s even “versed,” much less “well versed.”
October 7th, 2005 at 3:13 pm
(In retrospect, it’s probably not obvious what I was referring to there. It was Sean’s comment: “there are two very good reasons to value competence, even in someone of a disagreeable ideological cast.”)
October 7th, 2005 at 3:30 pm
Sean,
It is arbitrary in that you’ve implictly decided that the best legal minds can only have judicial experience or direct experience with the Supreme Court.
Based on what you’ve written, those are your only metrics for a great legal mind, and they are totally arbitrary.
October 7th, 2005 at 4:05 pm
It is always interesting to me that the Constitution imposes no minimum qualifications on a justice of the SCOTUS (while clearly delineating sets of requirements for legislative and executive offices), and leaves that decision to the US Senate–based on the writings of Madison and Hamilton. Clearly the first appointees had no US Federal Court experience, and over the intervening centuries, many have been appointed to the court who came up, not as judges, but through experiences in the legislative and executive branches at the State and Federal level. Miers experience, not in constitutional law at all, but in the corporate world of finance, her only state experience as the Texas lottery administrator, and serving as Bush’s White House attorney, does not evince the qualities that are representative of previous appointees. Given the advice and consent powers of the Senate, it is their duty to ascertain just how much constitutional law Miers understands, and the fact that there is no record of her involvement in that area, makes that inquiry more important as well as more difficult.
October 7th, 2005 at 4:12 pm
Moby– No, I did not implicitly decide that, you made it up. It’s true that I mentioned her lack of Supreme Court experience, just because it is so glaring. I did not explicitly argue for some specific metrics, simply because it wouldn’t matter; nobody in the world has reasonable standards for what constitutes a “great legal mind” by which Miers would qualify. And no, leading the Texas Lottery Commission doesn’t count.
October 7th, 2005 at 4:17 pm
Moby, please come up with one metric that makes Miers one of our best legal mind. Or at least prove an existence theorem.
October 7th, 2005 at 4:23 pm
I’ll go back to her quote that GWB is brilliant. Doesn’t having a great legal mind have as a prerequisite having a great mind.
October 7th, 2005 at 5:54 pm
Well, on the plus side, I’ve read that her undergrad degree was in math.
In general, though, you’re not going to get a great legal mind or whatever from Bush. Just ain’t gonna happen.
And I’m not so convinced that all of the past justices were that great either.
I’ll agree that Bush’s choice of Miers casts doubt on the sanity of both of them, which is a refreshing change from unalloyed venality, but I’m content to just watch and enjoy.
And speculate about what the fook was he thinking?
October 7th, 2005 at 6:47 pm
Yes, I agree that the best strategy at the confirmation hearings is simply to quiz her on con law. Let her discuss things, and show that she has an empty head.
October 7th, 2005 at 6:47 pm
Read this piece from Harold Meyerson in the Washington Post.
October 7th, 2005 at 10:16 pm
How funny would it be if all the Dems came out fervently in favour of her nomination?
October 8th, 2005 at 10:37 pm
Wow, I’m psychic:
http://news.yahoo.com/s/ap/20051009/ap_on_go_su_co/miers
October 9th, 2005 at 6:16 pm
Qualification number one: she is the legal counsel of the most powerful man in the world.
There’s an outcry amongst the conservatives about this choice. They’re not liking the unconservativeness of this.
And now the liberals are complaining about the choice too?
The only likely outcome of a scenario where Miers does not get confirmed is a more conservative judge will, and the court balance will have shifted. And the liberals will, as we always do, have had a hand in it.
October 9th, 2005 at 9:27 pm
As a physics major who ended up in law school, may I offer the following analogy?
It’s like your research group comprised of Newton, Einstein, Hawking, and Commander Data acquired Bill Nye.
Noel