At first blush, President Bush seems to have nominated for the Supreme Court the female equivalent of Justice David Souter, a never-married question mark whose record is like the current confirmation atmosphere — utterly unpredictable.
In fact, Harriet Miers has been more an administrative activist than an advocate of any of the major issues that so concern conservatives and liberals these days. She has been a longtime insider in the Bush entourage whose advice to the president will be nearly impossible to explore.
Her nomination will leave both ends of the ideological spectrum pondering her future role as replacement for the court’s main swing vote, Sandra Day O’Connor, and that isn’t likely to change unless a deep dark secret turns up in the coming weeks. The odds of that occurring are pretty slim given the fact she appears to have been a workaholic devoted to a mother who is now 90 and to have had a career whose highlights include a Dallas City Council post and later the head of the Texas Lottery Commission.
Two things are obvious here. The nominee is not the best talent available to Bush, and conservatives who regarded the president’s election as a mandate to change the direction of the court will be bitterly disappointed. The interrogation of Miers, the first female president of the Texas Bar Association, will be long, tedious and frustrating for those trying to plumb her inclinations about such social concerns as gay marriage, abortion and the mixing of religion in state affairs. Have at it, senators, but don’t expect any real answers from her.
Already Senate Judiciary Committee Chairman Arlen Specter has made it clear that he thinks there is very little on the record to examine, certainly not her advice and opinions as a counselor to Bush in his private affairs while he was governor of Texas and in her current job as White House counsel. Although Democrats are prepared to demand the release of her memoranda to the president, these most assuredly fall under the executive privilege doctrine or, as Specter noted, lawyer-client confidentiality.
This will leave potential opponents and supporters alike hopping on one foot and then the next searching for her overall view of the Constitution as either salve to their fears or a reason to vote against her. It is ticklish business. While past hearings have made it clear that no molehill is too small to turn into a mountain _ take the embarrassing Clarence Thomas debacle or Clement Haynsworth’s alleged stock indiscretions _ gratuitous attacks based on peevish, insignificant allegations have a high backfire probability. Thomas was confirmed on the ashamed vote, after all.
There was a time in the not too distant past when some Supreme Court nominees weren’t even called before the committee and those who were received courteous treatment and perfunctory questioning with senators mainly examining the candidate’s qualifications. While most nominees have come from the lower courts, a goodly number have not, including the late chief justice, William Rehnquist. Some of the court’s most distinguished members had no prior bench experience.
So from that standpoint, the decision to select a nominee who has spent her career as a practicing attorney in mainly corporate law before joining Bush is not expected to be a problem. In private practice she was a managing partner of her prestigious Dallas law firm, a job that requires helping chose the cases and pushing them to the right partners. For Bush, her initial job in the White House was directing the flow of issues coming to the president.
There seems to be little doubt about her skills as a lawyer, although her credentials are pale compared to newly confirmed Chief Justice John Roberts. She received initial praise from Senate Democratic Leader Harry Reid for the way she has handled herself in matters between the White House and Capitol Hill. There seems to be some grumbling from ideological lobbyists about her grasp of constitutional matters and reports that she gave a tiny amount of money to an antiabortion group and opposed a pro-abortion plank in the American Bar Association constitution.
If there is a concern with this appointment, it is that Miers seems like a comfortable appointment for Bush rather than one that offers brilliance but might be more controversial. Like Souter, Miers seems to lack a lot of personal luster or experience with the demanding tests of life like raising a family.
(Dan K. Thomasson is former editor of the Scripps Howard News Service.)