Howard J. Bashman's appellate columns, etc.

Miers Nomination Catches Bush Off–Base

By Howard J. Bashman
Monday, October 10, 2005
What qualifies someone to serve on the Supreme Court of the United States? A literalist would answer, "Being nominated by the President and confirmed by the U.S. Senate." Thus, it is not disqualifying for a President to nominate someone who was not considered a front–runner for the Court or even someone about whom there is precious little that can be known until it is too late to do anything about it.

President Bush's nomination last week of White House Counsel Harriet E. Miers to replace Justice Sandra Day O'Connor took most everyone by surprise. Miers has never served as a judge, has never argued a case to the U.S. Supreme Court, is sixty years old, is relatively unknown to lawyers and political geeks who obsess over the highest Court in the land, and had not been seriously viewed other than apparently by President Bush as a likely choice for the Court.

None of this, of course, means that Miers is unqualified to serve on the Supreme Court. She already possesses one of the two necessary qualifications: a Presidential nomination. And if a majority in the U.S. Senate votes to confirm the nomination (or if 50 Senators vote to confirm, plus the tie–breaking vote of Vice President Dick Cheney), Miers will become the one–hundred–and–tenth person, and third woman, to serve as a Justice on the U.S. Supreme Court.

So what qualifies Miers to serve on the highest Court in the land? She has worked closely with President Bush for many years, enabling him to have great confidence in her character and outlook. She rose to the heights of the profession in private practice, as leader of one of the largest law firms in Texas and as head of both the Dallas and Texas Bar Associations. She once served for two years on the City Council in Dallas. And she has no disqualifying paper trail.

On the other hand, for those who were wondering whether President Bush's second nomination to the Supreme Court could equal in quality and political deftness the nomination of John G. Roberts, Jr., the answer clearly is "no." Perhaps it would be unreasonable to expect that President Bush's second nominee would equal the quality of his first nominee, given how highly qualified Chief Justice Roberts was and is. But there are many, many other potential nominees, both male and female, of various demographic backgrounds, whose qualifications come close to those of Chief Justice Roberts. From what we know thus far, Harriet Miers is not one of them.

So are we to believe that Harriet Miers was President Bush's second choice when the President originally nominated John G. Roberts, Jr. to replace Justice O’Connor? And are we to believe that in the month after Chief Justice William H. Rehnquist died, Harriet Miers turned out to be the best nominee President Bush could find for the newly reopened O'Connor vacancy? Who knows?

Although a U.S. Supreme Court Justice has but one vote out of nine, Justice Sandra Day O'Connor's vote on the current Court, which until this year had no vacancies since 1994, has often proved decisive in resolving the most pressing issues of our time. Replacing Justice O'Connor with a person of unknown views and unknown judicial ability is, frankly, a frightening proposition.

When campaigning for the Presidency, George W. Bush often stated that he intended to nominate Justices in the model of Antonin Scalia or Clarence Thomas. And while Chief Justice Roberts is unlikely to be another Scalia or Thomas, at least the new Chief Justice probably will hold many of the same views as his predecessor and mentor, William H. Rehnquist. Harriet Miers does not appear to be another Scalia, Thomas, or Rehnquist. And that causes many on the political right to fear that she could be the next David H. Souter.

Of course, the first President Bush didn't know Souter well before nominating him to the Court, while the current President Bush has had a long time to get to know Harriet Miers. But again, when we find out what sort of a Justice Harriet Miers is, it will be too late to do anything about it. And the defense that the White House is offering -- that the nominee's supposed personal views should reassure those who hoped President Bush would nominate someone in the mold of Justices Scalia and Thomas -- seems wholly inconsistent with what conservatives have been saying about the distinction between a judge's personal views and constitutional opinions.

Many in the Republican base are angry and disappointed that President Bush did not nominate one of the many highly–qualified, young, unquestionably conservative potential candidates for the O'Connor vacancy. With 55 Republicans in the U.S. Senate, the White House could afford to lose five votes and still gain confirmation of a controversial nominee thanks to Vice President Cheney's tie–breaking vote. And even if the President nominated someone known to view Roe v. Wade as incorrectly decided, Justice O'Connor is currently the sixth vote on the Court to uphold a constitutional right to choose abortion (although, admittedly, she was the decisive fifth vote in striking down a ban on the controversial "partial–birth" abortion procedure).

Even though neither you (assuming you're not President Bush) nor I would have nominated Harriet Miers to the Supreme Court, I presume she will be confirmed to serve on the Court. After all, enough Republican Senators will support her, and she already has the support of the Senate's Democratic Leader, Harry Reid.

So let's try to end on a hopeful note. President Bush's nomination demonstrates that leading a law firm can qualify one to serve on the U.S. Supreme Court. The nomination shows that bar association leadership can lead to a seat on the highest Court on the land. And I'm sure that some members of the Dallas City Council are looking forward to being fitted for a judicial robe and having a large corner office in the marble palace at One First Street, N.E. in Washington, DC. Of course, being a close friend of the President never hurts, either.

This article is reprinted with permission from the October 10, 2005 issue of The Legal Intelligencer © 2005 NLP IP Company.