Harriet Miers has at least one thing in common with some of the best, and worst, Supreme Court justices of all time. She is utterly devoid of judicial experience.
Presidents have long reached well beyond the federal bench in selecting Supreme Court nominees. They’ve tapped senators, law professors, Cabinet secretaries and cronies.
The one rule is there is no rule for predicting who flies high and who flames out.
“Judicial experience,” University of Connecticut political scientist David Yalof noted, “does not necessarily translate into success on the Supreme Court.”
Yalof, author of “Pursuit of Justices: Presidential Politics and the Selection of Supreme Court Nominees,” predicted that Miers’ lack of experience will become a “defining aspect of her candidacy.”
It means there’s less of a paper trail for senators to follow. It also means, Yalof said, that the importance of “whatever paper is left over is magnified.”
In announcing Miers’ nomination, President Bush sought to preempt criticism by declaring that “more than 35 other” Supreme Court justices likewise had no prior judicial experience. That’s roughly one-third of the justices who have served on the court since 1789.
One of them was Abe Fortas, another presidential lawyer tapped for the court despite his inexperience. His may be a cautionary tale.
Fortas was in private practice when Lyndon Johnson chose him for the court in 1965. Like Miers, he had a long track record of providing counsel to the president. He served as Johnson’s lawyer during a closely contested 1948 Senate campaign.
It was sensitive work, much as Miers conducted sensitive work as a private attorney on Bush’s behalf tracking down National Guard rumors during his 1998 gubernatorial campaign in Texas.
Unlike Miers, though, Fortas was well-known nationally before his nomination, having among other accomplishments won the 1963 Gideon v. Wainright case guaranteeing the accused a right to counsel.
The White House will have its own reasons for not promoting any parallels with Fortas, who ultimately resigned under pressure in 1969 after questions about a $20,000 payment from a shady financier.
“There are some analogies,” Hofstra Law School professor Leon Friedman said Monday, but “Fortas had a much more distinguished career before he joined the Supreme Court.”
Co-author of “The Justices of the Supreme Court: Their Lives and Major Opinions,” Friedman further noted that neither Bush nor Johnson has been unique in picking judicial nominees from within their own inner circles. The White House itself stressed Monday that 10 out of 34 justices appointed since 1934 had worked for the president that nominated them.
“All four of (Harry) Truman’s appointees were his buddies,” Friedman said.
Three of Truman’s four nominees, moreover, lacked prior judicial experience.
On the other hand, unlike Miers, those three judicial novices had held highly public jobs. One was a senator, one was attorney general and one was Treasury secretary.
These were the kinds of beyond-the-courtroom experiences that some have said can prove most valuable.
“I’ve come to agree with the late Chief Justice William Rehnquist, who wrote about the importance of having judges who are drawn from a wide diversity of professional backgrounds,” Bush said Monday.
Former law professor Felix Frankfurter, former Attorney General Robert Jackson _ who never even graduated from college or law school _ and former private attorney Louis Brandeis all won Supreme Court kudos despite lacking judicial experience.
By contrast, Fred Vinson, another judicial novice who served as Truman’s Treasury secretary, is widely considered a particularly weak chief justice.
The man who replaced him, former California Gov. Earl Warren, had likewise never served as a judge but then earned both acclaim and controversy as chief justice.
President Nixon’s nominations of Rehnquist and Lewis Powell, who both took the oath in January 1972, marked the last time a judicial novice was named to the court, and Yalof noted that “a norm of judicial experience” has largely taken over the confirmation game since then.