When a vacancy opened up on the Supreme Court in July, President Bush chose one of the most outstanding lawyers in America to fill it. When the president got a second nomination, he would have had trouble finding someone who could match the legal talent and credentials of John Roberts.
But his selection of Harriet Miers to replace retiring Justice Sandra Day O’Connor suggests he didn’t even try.
Miers may be adequate to the job. She’s an experienced commercial litigator, former head of the Texas state bar association and current White House counsel. But it’s safe to say that if a dozen top legal scholars and practitioners had been asked last week to name 20 people deserving of consideration for the court, none would have mentioned her name. Measured against the admirably high standard he set with Roberts, Bush’s decision looks like a missed opportunity.
What can be said in Miers’ favor is that she built a successful career in private practice, rising to the top of a big law firm in Texas. Associates say she is extraordinarily hard-working and highly skilled in the courtroom. Having worked for Bush in various capacities, she obviously has earned his trust. Her lack of bench experience is not unprecedented and should not be disqualifying.
But her closeness to Bush does not inspire confidence. Coming so soon after Michael Brown resigned in disgrace as director the Federal Emergency Management Agency, the nomination suggests that the president has indulged his tendency to place too much weight on personal loyalty and friendship. The word “cronyism” was heard a lot Monday, with some cause.
Other criteria clearly played a role, of course. Bush apparently wanted to replace O’Connor, the first woman on the court, with another woman, or possibly with a Hispanic or an African-American. He also wanted someone who would not provoke a bloody Senate fight.
As a result, he decided not to choose a nominee with well-defined conservative views to replace the centrist O’Connor, for fear of igniting an all-out war on Capitol Hill.
The loudest laments came from conservatives, some of whom feel Bush has betrayed them by sending up a “stealth” nominee who has left few clues about her views on the divisive issues–such as abortion and affirmative action–that the court will have to address. They fear being stuck with another David Souter, who was appointed by the first President Bush and turned out too moderate for their taste.
Some Democrats appear receptive to Miers, hoping or figuring that those conservatives are right. She impressed Senate Democratic Leader Harry Reid, a sign she may draw bipartisan support. But at the moment, no one really knows what the Supreme Court will be getting if she is approved.
The president didn’t have to make a powerful case for Roberts, because his career made the case largely by itself. This time, the administration has a heavy obligation to explain in clear and persuasive terms why Miers should be confirmed to one of the most important offices in America. She has earned the trust of the president, but she will need to earn the trust of the American people.
