Three certainties as Friday dawns:
– Sandra Day O’Connor eventually will leave the U.S. Supreme Court, bequeathing her seat to someone other than a Justice Harriet Miers.
– George W. Bush, having withdrawn his uninspired nomination of Miers, now has a fresh opportunity to continue shaping the court in ways that, for better or worse, will help define his legacy as president.
– Bush’s shaping of the court won’t necessarily end with the selection of a new nominee to fill O’Connor’s chair. Age or health considerations could influence the tenure of at least two of the other sitting justices during the remaining three years of Bush’s second term.
Bush knows how to choose a superb and confirmable nominee, a verity we all know because he has done it. His two selections of John Roberts Jr.–first for O’Connor’s seat and then, after the death of William Rehnquist, for chief justice–put atop the court a brilliant jurist with impeccable credentials.
Roberts may be especially gifted, but so are other potential candidates for the high court. What made him confirmable was that he projected a grounded and principled view of the Constitution. He didn’t come across as an outcome-oriented jurist–certain of how he’d rule on controversial issues, uncertain only of how he’d get there.
As Roberts patiently illuminated several lower-wattage members of the Senate Judiciary Committee on the role of a judge, Americans heard him say how he’ll get to wherever he arrives: by applying to each case what the law of this land says, not what he wishes it would say.
Miers didn’t project that same ability or self-assurance. Bush, in naming someone so close to him, invited charges that cronyism was her strong suit.
Her background in business law was devoid of substantial experience in the social and constitutional issues that animate public discourse about the court.
In addition to those certifiable shortcomings, it’s fair to note that Miers also was faulted for her elitism deficit. Some of her critics were displeased that she hadn’t attended one of the right law schools or pursued a judicial career path that would have put her on short lists for the high court.
Decorously, but no doubt to her own disadvantage, Miers reserved her public response to her critics, right and left, for the confirmation hearing that now will not occur. Perhaps she’ll warn the next nominee not to make the same mistake.
Bush, too, should not repeat his mistake. His desire to shape the court will be better served if that next nominee has a clear grounding in constitutional law and a coherent constitutional philosophy Americans can evaluate.
That doesn’t mean appeasing those who think the Supreme Court was more “mainstream” when liberal Democratic presidents were choosing most justices. Bush was re-elected president–and Tom Daschle no longer has a Senate seat–in part because many Americans concluded that Democrats were unfairly blocking Bush’s nominees to the federal judiciary.
Many people, none more than Bush, owe Harriet Miers an apology for what Judiciary Chairman Arlen Specter (R-Pa.) correctly summed up Thursday as this sad episode. Its ironic epilogue: Miers now will play a key role in choosing not only O’Connor’s replacement as a justice, but her own as a nominee. Just as she played a key role in choosing John Roberts.
The hope here is that she helps Bush populate the court with stellar justices who, like Roberts, would rather interpret the law than invent it.
